Thomas v. Bennett

271 A.D.2d 768, 705 N.Y.S.2d 445, 2000 N.Y. App. Div. LEXIS 4187

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2000
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III hearing, petitioner, a prison inmate, was found guilty of possessing a weapon after a plexiglass shank was found in his cell during a search. The misbehavior report and the testimony of the correction officer who authored the report and found the weapon constitute substantial evidence of petitioner’s guilt (see, Matter of Williams v Selsky, 257 AD2d 932). With respect to the Hearing Officer’s denial of petitioner’s request to call as a witness his inmate assistant, we find no error. Although the Hearing Officer failed to provide a written explanation for his denial, the record reveals that the testimony sought from this witness was immaterial to the charge and redundant to petitioner’s exculpatory testimony, and we find no basis upon which to set aside the determination (see, 7 NYCRR 254.5 [a]; see also, Matter of Torres v Goord, 264 AD2d 871; Matter of Odom v Goord, 246 AD2d 941).

We also reject petitioner’s contention that his eventual removal from the hearing room constituted an abuse of the Hearing Officer’s discretion (see, 7 NYCRR 254.6 [b]). Since petitioner’s removal was caused by his own protracted unruly conduct and only came after repeated warnings, the decision to remove him was well within the discretionary powers of the Hearing Officer (see, Matter of Dumpson v McGinnis, 247 AD2d 804; Matter of Jones v Selsky, 223 AD2d 990). Likewise, the record fails to support petitioner’s allegation that the Hearing Officer was biased against him (see, Matter of Fletcher v Murphy, 249 AD2d 638; Matter of Jones v Selsky, supra).

Cardona, P. J„, Crew III, Spain, Carpinello and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.