Opinion
2014-06-26
In the Matter of Alex SHOGA, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Alex Shoga, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Alex Shoga, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.
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.
During a mental health interview, petitioner made comments to a female social worker regarding her personal appearance and marital status. He continued to do so even after she directed him to stop, which prompted her to end the interview. The following day, petitioner allegedly again attempted to engage the social worker in a personal conversation. As a result, he was charged in a misbehavior report with refusing a direct order, harassment and stalking. Following a tier III disciplinary hearing, he was found guilty of the former two charges, but not of the latter. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony of the social worker and a correction officer to whom she reported the incident, provide substantial evidence supporting the determination of guilt ( see Matter of Rodriguez v. Fischer, 115 A.D.3d 1104, 1105, 981 N.Y.S.2d 888 [2014];Matter of Oliver v. Fischer, 107 A.D.3d 1268, 1268–1269, 967 N.Y.S.2d 248 [2013] ). We find no merit to petitioner's contention that he was improperly denied certain witnesses, as there is nothing to indicate that the individuals in question personally witnessed the exchanges that provided the basis for the determination of guilt ( see Matter of Tafari v. Fischer, 94 A.D.3d 1324, 1325, 942 N.Y.S.2d 695 [2012],lv. denied19 N.Y.3d 807, 2012 WL 2401604 [2012];Matter of Ramsey v. Fischer, 93 A.D.3d 1000, 1002, 940 N.Y.S.2d 350 [2012],lv. denied19 N.Y.3d 955, 950 N.Y.S.2d 102, 973 N.E.2d 200 [2012] ). Notably, the testimony of one of the medical professionals requested was relevant only to the stalking charge that was ultimately dismissed. Furthermore, upon thoroughly reviewing the record, we find nothing to suggest that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Quezada v. Fischer, 113 A.D.3d 1004, 1004, 979 N.Y.S.2d 426 [2014];Matter of Guillory v. Fischer, 111 A.D.3d 1005, 1005–1006, 974 N.Y.S.2d 196 [2013] ). We have considered petitioner's remaining arguments and find that they are either unpreserved for our review or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.