Matter of Sileo v Annucci

Matter of Sileo v Annucci 2015 NY Slip Op 07903 Decided on October 29, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 29, 2015
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[*1]In the Matter of STEVEN SILEO, Respondent,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Appellant.

Calendar Date: September 22, 2015
Before: McCarthy, J.P., Garry, Rose and Lynch, JJ.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for appellant.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McNally Jr., J.), entered July 17, 2014 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent findng petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found a piece of mirror and a pen shaft that had been fashioned into makeshift weapons, as well as a television set inscribed with another inmate's identification number. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing contraband. During the tier III disciplinary hearing that followed, petitioner requested the inmate who allegedly reported that the television set had been stolen from him to testify at the hearing. The Hearing Officer denied the inmate's testimony. At the conclusion of the hearing, petitioner was found guilty of the charges and the determination

was later affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination on the ground that, among others, the Hearing Officer improperly denied him the right to call the inmate as a witness. Following service of respondent's answer, Supreme Court concluded that petitioner's constitutional right to call witnesses had, in fact, been violated. Accordingly, the court granted the petition, annulled the entire determination and directed that all references to it be expunged from petitioner's institutional record. Respondent now appeals.

Initially, the testimony of the inmate who was denied as a witness related solely to the contraband charge, which was based upon petitioner's possession of the television set and had nothing to do with his possession of the two weapons. Thus, even if petitioner was improperly [*2]denied a witness, that portion of the determination finding him guilty of possessing a weapon should not have been annulled on this basis. Moreover, although the witness denial impacted only the contraband charge, the record reveals that the inmate's testimony was neither material nor relevant because petitioner's guilt was not dependent upon that inmate's ownership of the television set (see Matter of Thompson v Fischer, 89 AD3d 1353, 1354 [2011], lv denied 18 NY3d 809 [2012]; see also Matter of Covington v Smith, 75 AD3d 708, 708 [2010]). Rather, the rule at issue states, in relevant part, that "an inmate shall not possess any item unless it has been specifically authorized by the superintendent or designee, the rules of the department or the local rules of the facility" (7 NYCRR 270.2 [B] [14] [xiii]). Here, the evidence in the record establishes that petitioner possessed a television set that he was not authorized to have (see Matter of Meyers v Fischer, 85 AD3d 1480, 1481 [2011]). In view of this, we find that there was no violation of petitioner's regulatory or constitutional right to call witnesses. Therefore, Supreme Court's judgment must be reversed and the determination upheld.

McCarthy, J.P., Garry, Rose and Lynch, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination confirmed and petition dismissed.