Wilcox v. Fischer

78 A.D.3d 1394, 911 N.Y.S.2d 250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2010
• Status: Published

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following the investigation of an incident in which an inmate was attacked and found in a semiconscious state, petitioner was charged in a misbehavior report with assaulting an inmate, engaging in violent conduct and engaging in disorderly conduct. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

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Petitioner contends that he was improperly denied the right to call certain witnesses at the hearing and that the Hearing Officer was biased. We find these claims to be without merit. Ten of the witnesses requested by petitioner, including both inmates and correction officials, testified during the course of the nearly one-month hearing. Those who were denied would not have provided testimony that was relevant to the charges against petitioner (see Matter of Lozada v Cook, 67 AD3d 1232, 1233 [2009], lv denied 14 NY3d 706 [2010]; Matter of Ellison v Fischer, 63 AD3d 1382, 1383 [2009]). Likewise, petitioner’s claim of hearing officer bias is not substantiated by the record, and there is no indication that the determination flowed from any alleged bias (see Matter of Bornstorff v Bezio, 73 AD3d 1397, 1398 [2010]; Matter of Williams v Fischer, 73 AD3d 1364, 1365 [2010]).

Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

While the petition arguably raises a substantial evidence claim, petitioner has abandoned any such claim by not raising it in his brief (see Matter of Ifill v Fischer, 72 AD3d 1367, 1368 n [2010]).