Opinion
519088
05-14-2015
In the Matter of Gilbert PILET, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Gilbert Pilet, Ossining, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Gilbert Pilet, Ossining, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: McCARTHY, J.P., ROSE, LYNCH and CLARK, JJ.
Opinion Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer observed petitioner exchanging punches with another inmate in the mess hall and ordered him to stop engaging in such conduct. Petitioner ignored the officer's directives, but was eventually subdued and placed in mechanical restraints. Thereafter, he was charged in a misbehavior report with fighting, engaging in violent conduct, creating a disturbance and refusing a direct order. Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal with a modified penalty. He then commenced this CPLR article 78 proceeding.
Although the petition arguably raised the issue of substantial evidence and the proceeding was therefore properly transferred to this Court, petitioner has abandoned this issue by not raising it in his brief (see Matter of
We confirm. Initially, we find no merit to petitioner's claim that he was improperly denied the right to call the physician who admitted him to the infirmary as a witness inasmuch as this individual was not present in the mess hall and did not have personal knowledge of the incident that provided the basis for the misbehavior report (see Matter of Rosales v. Pratt, 98 A.D.3d 764, 765, 949 N.Y.S.2d 820 [2012], lv. denied 19 N.Y.3d 816, 2012 WL 5309615 [2012] ; Matter of Tafari v. Fischer, 94 A.D.3d 1324, 1325, 942 N.Y.S.2d 695 [2012], lv. denied 19 N.Y.3d 807, 2012 WL 2401604 [2012] ). In addition, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Harris v. Piccolo, 122 A.D.3d 1044, 1045, 995 N.Y.S.2d 845 [2014] ; Matter of Garcia v. Garner, 122 A.D.3d 988, 989, 995 N.Y.S.2d 829 [2014] ). Furthermore, the transcript of the hearing belies petitioner's contention that the audiotape was altered in such a manner that most of the witness testimony is missing. Although there are some inaudible gaps, they are not so significant as to preclude meaningful review (see Matter of Merritt v. Fischer, 108 A.D.3d 993, 994–995, 969 N.Y.S.2d 248 [2013] ; Matter of Bookman v. Fischer, 107 A.D.3d 1260, 1260, 967 N.Y.S.2d 242 [2013] ). We have considered petitioner's remaining arguments and find them to be unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Rogers v. Prack, 118 A.D.3d 1223, 1224 n., 987 N.Y.S.2d 710 [2014], lv. granted 24 N.Y.3d 916, 2015 WL 652132 [2015] ).