Matter of Jones v Brian Fischer Commr. N.Y. State Dept. of Correction & Community Supervision

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Matter of Jones v Brian Fischer Commr. N.Y. State Dept. of Correction & Community Supervision 2012 NY Slip Op 32719(U) July 11, 2012 Supreme Court, Albany County Docket Number: 7577-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YQRK SUPREME COURT COUNTY OF ALBANY In T h e Matter of ANTONIO JONES, Petiticner, -against- BRTAN FISCHER C O m S S I O N E R NEW YORK STATE DEPARTMENT OF CORRECTION AND COMhKMTY SUPERVISION, Respondents, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. ~~ ~ ~ Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding WI No. 01-11-ST3227 Index No. 7577-1 1 Appearances: Main Street Legal Services, Inc. Attorneys Fur Petitioner 2 court Square Long Island City, NY I 1 101 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Kevin P.Hickey, Assistant Attorney General of Counsel) DECISIONJORDEWJUDGMENT George B. Ceresia, Jr., Justice [* 2] The petitioner, an inmate currently at Auburn Correctional Facility, commenced the instant CPLR Article 78 proceeding to review a disciplinary determination dated June 10, 201 1 in which he was found guilty of violating prison rules. He was found to have vioiated Rule I05 13 involving, as relevant here. possession of gang-related material consisting of four photographs. It is alleged in the petition that during the hearing, the hearing officer infringed upon petitioner s due process right to call a witness who would testify that the four photographs in his possession, had previously been screened and approved by an Investigator employed by the respondent Department of Corrections and Community Service @OCCS) in the Inspector General s Office. Specifically, it is indicated that in March or April of 2009 an individual identified as Investigator Gessner reviewed the photographs and subsequently returned them to the petitioner after the conclusion of an investigation. The petitioner argues that the photographs would not have been returned to him had they contained gang symbols or hand signs. The hearing offxer denied petitioner s request to have Investigator Gessner testify, finding the testimony was not relevant since [tjhere s no proof that these photos were reviewed or that they may have been overlooked. It is well settled that a hearing officer may properly deny witnesses who would provide testimony which is merely cumulative and redundant to that given by prior witnesses LMatter of Gomez v Fischer, 74 AD3d 1399, 1400 [3d Dept., 20101; Matter of McLean see Rule 105.13 recites as follows: Aninmate shall not cngage in or encourage others to engage in gang activities or meetings, or display, wear, possess, distribute or use gang insignia or materials including, but not limited to, printed or handwritten gang or gang related materid. (see 7 NYCRR $270.2) 2 [* 3] v Fischer, 63 AD3d 1468,1469 [3d Be@, 20091; Matter of 1e;astUa v Selskv, 41 AD3d 717 [3d D q t , 20071); or those who have no direct knowledge of the subject incident (see Matter of Tafari v Fischer, 94 AD3d 1324 [3d Dept., 20 123; Matter of Davis v State ofNew York, 75 AD2d 1022,1023 [3d Dept., 20101; Matter of Hernandez v Bezio, 73 AD3d 1406,1407 [3dDept., 20101; Matter of Smith v Martuscello, 85 AD3d 1516 [3d Dept., 201.11; Matter of Knight v Bezio, 82 AD3d 1381, 1382 [3d Dept., 201 11; Matter of Smalls v Fischer, 89 AD3d 1294 [3d Dept., 201 11). The Court fmds that petitioner was entitled to call Investigator Gessner to explain, if he could, whether he reviewed the photographs, for what purpose, and whether or not he noticed or was aware that the photographs contained gang hand signs. Because, however, the Hearing Oficer provided a good faith reason for denial of the witness (supra), the Court finds that there was no constitutional violation and, accordingly, the matter must be remitted to the respondent to conduct another hearing (seeMatter of Buari v Fischer, 70 AD3d 1 147 [3d Dept., 2010J;Matter of Santiago v Fischer, 76 AD3d I127 [3d Dept., 20101). In petitioner s second cause of action, petitioner argues that because his request to call Investigator Gessner was denied, he was prevented fiom raising a defense under the doctrine of res judicata. The petitioner indicates that the photographs at issue i this proceeding were n the subject of a 2009 disciplinary proceeding. It is asserted that the defense of res judicata applies by reason that Investigator Gessner s testimony would have established that the petitioner had been found not guilty ofpossessing gang related material with respect to those 3 [* 4] photographs, which include the same ones at issue in the instant proceeding. Under the doctrine of res judicata, apwty may not litigate a claim where ajudgment on the merits exists from a prior action between the same parties involving the same subject matter (In Re Hunter, 4 NY3d 260, 269 12005J citing O Connellv Corcoran, 1 NY3d 179,184- I85 [2003]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 48 1,485 119791; see Comrie, Inc. v Lake Avenue, Inc., 84 AD3d 856 [3d Dept., 201 11). The rule applies not only to claims actually litigated but aIso to claims that could have been raised in the prior litigation (d.). The rationale underlying this principIe is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again ( ) doctrine of a The . resjudicata is generally applicable to quasi judicial administrativedeterminations(see Matter of JoseY v Goord, 9 NY3d 386 [2007], citing R ~ a v New York Tel. Co., 62 NY2d 494,499 n 119841). In this case, however, the petitioner has not presented sufficient evidence to establish h a t the prior disciplinary determination specifically exonerated him of guilt with regard to the four photographs in question here. The Court finds that the cause of action has no merit.2 In his third cause of action, the petitioner maintains that he was denied his right to present documentary evidence. One such document was a DOCCS memorandum regarding The misbehavior report dated March 19,2009, while mentioning two pages (front and back) of unauthorized gang related material, does not explicitly mention photographs. The disciplinary determination dated April 2,2009 found the petitioner guilty of possessing gang related materiaIs based, in part, upon his own admission. On its face, the determination does not appear to exonerate the petitioner of anything. 4 [* 5] a Rastafarian hand sign which, he claimed, was the same hand sign depicted in one of the photogapks identified in the misbehavior report. From a review of the hearing transcript, it appears that the petitioner indicated during the hearing that he recently had a copy of the memorandum in his possession, but could not locate it because his belongings had been packed up by others when he was removed from his ceI1. Because the petitioner was evidently aware of the contents of the memorandum, and because he had requested the hearing officer to consider it, the Court fmds that the petitioiier has not demonstrated how, or in what respect he was prejudiced by the failure to produce it at the hearing. The petitioner also requested production of training materials with respect to gang hand signs testified to by Counselor Kober. The Hearing OMicer denied production ofthe training materials an grounds that they were LCconfidential . was recently held that a It witness s explanationthat a document was confidential w~ls insufficient to support a bald claim of confidentiality (seeMatter of Crook v Fischer, 91 AD3d 1076 [2d Dept., 20121). Notably, while such materiaIs might properIy be denied on grounds that disclosure would jeopardize institutional safety or correctional goals (s Matter of Chill v Goord, 36AD3d 997,998 [YdDept., 2007]), that was not expressly stated by &e Hearing Officer. Under the circumstances, the Court finds that this, too, supports remittal to the respondent for a new hewing (w Matter of Crook v Fischer, supra). In view of the foregoing, the Court need not address petitioner s fourth cause of action, which argues that the penalty imposed was excessive. 5 [* 6] Accordingly it is ORDERED and ADJUDGED, that the petition be and hereby is granted to the limited extent that the determination dated June 10, 201 1 is vacated, and the matter is remitted to the respondent for a new hearing. This shall constitute the decision, order and judgment of the COW. The original decisionlorderljudgment is returned tu the attorney for the petitioner. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlorderljudgment and delivery of this decisionlorderljudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER July 11,2012 Troy, New York Dated: George B , Ceresia, Jr, Papers Considered: 1. 2. Notice of Petition dated December 6,20 I 1, Petition, Supporting Papers and Exhibits Respondent s Answer dated March 1,20 12 Not Considered: 1. Letter dated June 6,20 12 of Antonio Jones 6

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