Opinion
2012-02-2
In the Matter of Reginald McFADDEN, Appellant, v. Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Reginald McFadden, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Reginald McFadden, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered March 21, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
When several letters sent to petitioner, a prison inmate, raised suspicion, the facility superintendent authorized their opening. The letters implicated petitioner in a scheme to encourage several inmates to sign over power of attorney to a third party for their legal matters and apply for Veterans Administration loans and threatened one inmate that a hold would be placed on his estate should he refuse to do so. As a result, petitioner was charged in a misbehavior report with threats, extortion, solicitation and violating correspondence procedures. Following a tier III disciplinary hearing, he was found guilty of all charges and that determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding to challenge the determination, and Supreme Court dismissed the petition. This appeal ensued.
Initially, we note that petitioner affirmatively waived any contention that the determination was not supported by substantial evidence. Moreover, it is unpreserved for this Court's review because petitioner did not raise such issue in his petition ( see Matter of Cole v. Goord, 47 A.D.3d 1147, 1147, 850 N.Y.S.2d 687 [2008] ). In addition, we find that the authorization from the superintendent to open and read his outgoing mail was consistent with departmental regulations ( see 7 NYCRR 720.3[e][1]; Matter of Montes v. Bezio, 79 A.D.3d 1567, 1568, 915 N.Y.S.2d 332 [2010], lv. granted 16 N.Y.3d 849, 922 N.Y.S.2d 264, 947 N.E.2d 156 [2011] ).
Turning to petitioner's procedural contentions, we find that he received adequate employee assistance where he was provided with all requested documentation that was not deemed confidential and his assistant interviewed all of the witnesses that petitioner requested ( see Matter of Jackson v. Fischer, 87 A.D.3d 775, 775–776, 928 N.Y.S.2d 613 [2011]; Matter of Hernandez v. Bezio, 73 A.D.3d 1406, 1407, 902 N.Y.S.2d 688 [2010] ). We also reject petitioner's claim of hearing officer bias; a review of the record demonstrates that the finding of guilt was premised on the evidence presented at the hearing ( see Matter of Argentieri v. Fischer, 87 A.D.3d 1242, 1242–1243, 929 N.Y.S.2d 889 [2011] ).
However, we do find merit in petitioner's argument that the Hearing Officer erred in failing to make an effort to ascertain the reasons that inmates Sonberg and Freeman refused to testify. When petitioner requested those inmates' testimony at the hearing, the Hearing Officer noted that the employee assistance form indicated that both were unwilling to testify. However, that notation alone was not a sufficient basis to summarily deny petitioner's right to call those witnesses and, thus, it was incumbent upon the Hearing Officer to attempt to validate the reasons for their refusals ( see Matter of Robinson v. Fischer, 68 A.D.3d 1687, 1687–1688, 892 N.Y.S.2d 698 [2009]; Matter of Martinez v. Goord, 15 A.D.3d 737, 738, 789 N.Y.S.2d 337 [2005] ). Inasmuch as this amounted to a regulatory violation of petitioner's right to call witnesses, the matter must be remitted for a new hearing ( see Matter of Santiago v. Fischer, 76 A.D.3d 1127, 1127, 908 N.Y.S.2d 139 [2010]; Matter of Alvarez v. Goord, 30 A.D.3d 118, 121, 813 N.Y.S.2d 564 [2006]; Matter of Martinez v. Goord, 15 A.D.3d at 738, 789 N.Y.S.2d 337).
Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ORDERED that the judgment is reversed, on the law, without costs, determination annulled, and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.