Opinion
2011-11-17
In the Matter of William TAYLOR, Petitioner,v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
William Taylor, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
William Taylor, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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 a prison disciplinary rule.
After a correction officer observed petitioner acting in a suspicious manner, petitioner was pat frisked and a seven-inch ice pick style weapon was found in the waistband of his pants. As a result, petitioner was charged in a misbehavior report with possession of a weapon, and he was found guilty following a tier III disciplinary hearing. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
This proceeding appears to have been improperly transferred inasmuch as the issue of substantial evidence was not raised in the petition ( see Matter of Barca v. Fischer, 80 A.D.3d 1038, 1038 n., 915 N.Y.S.2d 392 [2011], lv. denied 16 N.Y.3d 711, 2011 WL 1643302 [2011]; Matter of Davis v. State, 75 A.D.3d 1022, 1022 n., 907 N.Y.S.2d 341 [2010] ). However, we will retain jurisdiction and entertain the merits in the interest of judicial economy.
We confirm. Initially, petitioner contends that the Hearing Officer failed to properly investigate the reason why one of petitioner's requested inmate witnesses refused to testify. However, this issue is unpreserved for this Court's review inasmuch as the inmate executed a witness refusal form and petitioner, when informed during the hearing of the inmate's refusal, failed to object or request that the Hearing Officer make further inquiry ( see
Matter of Hill v. Fischer, 69 A.D.3d 1103, 1103, 893 N.Y.S.2d 339 [2010]; Matter of Coleman v. Selsky, 65 A.D.3d 1400, 1401, 885 N.Y.S.2d 235 [2009] ). With regard to an inmate witness who testified, we conclude that the Hearing Officer appropriately limited such testimony to issues that were relevant to the charges in the misbehavior report ( see 7 NYCRR 254.5[a]; Matter of Griffen v. Goord, 277 A.D.2d 612, 613, 715 N.Y.S.2d 549 [2000]; see generally Matter of Harvey v. Bradt, 81 A.D.3d 1003, 1004, 921 N.Y.S.2d 335 [2011] ). Finally, we do not find the penalty assessed to be so “shocking to one's sense of fairness” as to be excessive ( Matter of Phipps v. Fischer, 82 A.D.3d 1396, 1397, 918 N.Y.S.2d 385 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.