Matter of Thurmond v Fischer

Matter of Thurmond v Fischer 2013 NY Slip Op 08555 Decided on December 26, 2013 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: December 26, 2013
514660

[*1]In the Matter of KEVIN THURMOND, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: October 22, 2013
Before: Peters, P.J., Rose, Lahtinen and Egan Jr., JJ.


Kevin Thurmond, Stormville, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cahill, J.), entered May 22, 2012 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with engaging in lewd conduct and refusing a direct order in violation of prison disciplinary rules. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Petitioner thereafter commenced this CPLR article 78 proceeding arguing that his right to call witnesses at the hearing was denied. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. Contrary to petitioner's argument, the record confirms that the Hearing Officer made a sufficient inquiry after petitioner's three requested inmate witnesses refused to testify at the hearing. Significantly, the Hearing Officer personally interviewed each of the inmates who refused to testify and had them execute refusal forms documenting their reasons for not wanting to be involved. Under these circumstances, we conclude that petitioner's right to call witnesses was not denied (see Matter of Tafari v Fischer, 98 AD3d 763, 763 [2012], lv denied 19 NY3d 816 [2012]; Matter of Suero v Fischer, 95 AD3d 1509, 1510 [2012]). Petitioner's claim that Supreme Court improperly failed to find evidence of hearing officer bias is raised for the first time in his reply brief and is, therefore, not properly before us (see Matter of Land v Fischer, [*2]100 AD3d 1170, 1170 [2012]; Matter of Tutunjian v Conroy, 55 AD3d 1128, 1130 n 2 [2008]). All remaining contentions advanced by petitioner have been examined and found to be unpersuasive.

Peters, P.J., Rose, Lahtinen and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.