Thompson v. Goord

269 A.D.2d 640, 704 N.Y.S.2d 171, 2000 N.Y. App. Div. LEXIS 1076

Opinion

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

Petitioner, a prison inmate, challenges the determination finding him guilty of possessing a weapon, possessing an altered item and possessing stolen property. According to the misbehavior report, a correction officer witnessed petitioner throwing something into a garbage bin and, when the correction officer went to retrieve it, he found a razor blade wrapped with a taped sheath. Subsequently, petitioner’s cell was searched at which time a television, not registered to petitioner, and an electrical adapter were also found.

Footnotes

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We reject petitioner’s contention that he was denied relevant documentary evidence, i.e., a list of all the correction officers authorized to conduct frisks and a list of all the inmates who were present during the frisk. The Hearing Officer properly instructed petitioner that such information was either not available or available only through witness testimony, and petitioner failed to raise these issues during any witness testimony. In any event, this information was properly found to be wholly irrelevant to the various charges under consideration (see, Matter of Rowlett v Coombe, 242 AD2d 798). Furthermore, we reject petitioner’s contention that he received inadequate employee assistance inasmuch as this contention is predicated upon the assistant’s failure to produce the irrelevant lists (see, id.).

Next, we do not find that the Hearing Officer’s denial of petitioner’s request for a list of correction officers involved in the frisk violated petitioner’s due process rights. The Hearing Officer properly determined that the documentary evidence sought by petitioner would be irrelevant or redundant (see, Matter of Fletcher v Murphy, 249 AD2d 638). Petitioner’s remaining contentions have been considered and found to be without merit.

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

It is noted that petitioner initially raised a substantial evidence question before Supreme Court. However, petitioner has failed to raise this issue before this Court and, therefore, the issue has been abandoned (see, Matter of Johnson v Goord, 260 AD2d 816; Matter of Roe v Selsky, 250 AD2d 935).