Matter of Sutherland v Selsky

Matter of Sutherland v Selsky 2008 NY Slip Op 08371 [56 AD3d 833] November 6, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Patrick Sutherland, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

—[*1] Patrick Sutherland, Wallkill, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Devine, J.), entered December 11, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with facilitating a work stoppage and creating a disturbance. At the ensuing tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment. Supreme Court dismissed the petition and this appeal followed.

We affirm. Contrary to petitioner's assertion, the Hearing Officer properly refused to call certain civilian witnesses because they had no personal knowledge of the incident and, thus, their testimony would have been redundant or irrelevant to the charges (see Matter of Morris v Goord, 50 AD3d 1327, 1327 [2008]; Matter of Moore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 [2008]; Matter of Hannah v Burge, 43 AD3d 1234, 1234 [2007]; Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). On this issue, we cannot consider the witness affidavit attached to petitioner's brief on appeal because it was not included in the record before [*2]Supreme Court (see Matter of Lebron v McGinnis, 20 AD3d 793 [2005], lv denied 5 NY3d 714 [2005]; Matter of Ali v Goord, 15 AD3d 699, 700 [2005]). As for petitioner's contention that he was deprived of adequate employee assistance, any alleged deficiencies were cured by the Hearing Officer during the hearing (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Petitioner's remaining claims, to the extent not specifically addressed herein, have been examined and found to be unavailing.

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

[Decision vacated by 61 AD3d 1188.]