Matter of Wilson v Fischer
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Matter of Wilson v Fischer 2013 NY Slip Op 32659(U) October 10, 2013 Supreme Court, Albany County Docket Number: 2910-13 Judge: Jr., George B. Ceresia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREfvfE COURT COUNTY OF ALBANY ___________ _ ___________ _ _., In The Matter of ROBERT WILSON, 97-A-3481 Petitioner, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. -againstBRIAN FISCHER, Commissioner, NYS Department of Corrections and Community Service, Respondent, Supreme Court Albany County Article 78 Tenn Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # Ol-13-ST4691 Index No. 2910-13 Appearances: Hiscock & Barclay, LLP Attorneys For Petitioner 80 State Street Albany, NY 12207 Eric T. Schneiderman Attorney General ·state of New York Attorney For Respondent The Capitol Albany, New York 12224 (Keith A. Muse, Assistant Attorney General of Counsel) DECISION/ORDER/JUDG!VfENT George B. Ceresia,. Jr., Justice The petitioner, an inmate in the custody of the ~few York State Department of Corrections and Community Supervision ("N"YSDOCCS''), commenced the instant CPLR Article 78 proceeding to review a Tier III disciplinary deten:- ,_ation dated November 5, 2012 :c 1 [* 2] in which he was found guilty of violating prison rules... Spec~ifically, the petitioner was found guilty of Rule 113.25, possession of drugs; Rule 114.10,smuggling; and Rule 121.12, phone program violation. The misbehavior report dated October 26, 2012 recites as follows: "As part of an ongoing investigation being conducted by the NYSDOCCS Inspector Generals Office it was determined that Inmate Robert Wilson 97A3.48 l did. conspire with several_ persons to have · marijuana smuggled i·nto . h.im at the ShawangunkCorrectional Facility. Specifir~;!·t1 inniate Wilson a person at her did dire·ct his wife Arlene Wilson to residence and then provide rnarijµana to th<lt ~person so that it could be smuggled into the facility at a Jiver date. Inmate Wilson did engage in this conduct for monetary gain. Inmate Wilson utilized the inmate phone system to further and facilitate this conduct." me. t. e The Hearing Officer imposed a penalty which included an .c~~hteen month confinement in · .. . the special housing unit, and eighteen month loss of ttie ,. . f~;llowing privileges: receipt of packages~ commissary, and .telephone. Upon administrativ_~ appeal, the duration of all the foregoing penalties was modified to t\velve months. The sole issue is whether the petitioner's right to call a witness at the disciplinary hearing was violated. "It is well settled that an. inmate has a conditional right to call witnesses at a disciplinary hearing provided theirtestimony would not jeopardize institutional safety or correctional goals" (Matter of Morris-Hill v Fische~, 104 AD3d 978, 978 f3d Dept., 2013], citing_7 NYCRR 254.5 [a]; Matter ofLop.ez v .Fisd1er, 100 AD3d 1069, 1070, 952 N.Y.S.2d694, 695 [2012];MatterofSantiagovFischer, 76AD3d 112.7, 1127, 908N.Y.S.2d 139 [2010]). It is also well settled that ahearing ·officer m'.ly properly deny witnesses who would provide testimony which is merely cumulative and redundant to that given by prior witnesses (see Matter of Gomez v Fischer, 74 AD3d 1399) I 400 [3d Dept., 201 O]; Matter of [* 3] McLean v Fischer, 63 AD3d 1468, 1469 [3d Dept., 2009]; Matter of Igartua v Selsky, 41 AD3d 717 [3d Dept, 2007]); or those who have no direct knowledge of the subject incident (see Matter of Hines v Prack; _AD3d _, 2013 NY Slip Op 5939, [3d Dept., September 19, 2013]; Matter of Tafari v Fischer, 94 AD3d 1324, 1325 [3d Dept., 2012]; Matter of Smalls v Fischer, 89 AD3d 1294 [3d Dept., 2011]). The petitioner wished to call Currection Officer Calabrese as a witness. C.O. Calabrese is claimed to have first hand knowledge of the incident in question, which could exonerate the petitioner of the charges. The Hearing Officer made several attempts to contact C.O. Calabrese. He finally reached him by telephone, however C.O. Calabrese refused to testify. The Hearing Officer's witness interview notice for C.O. Calabrese recites as follows:· . Permission to call the requested witness is denied. " . "Date: 11-5-12 Explanation: This witness is a suspended employer, who upon being polled by this hearing officer, refused on record to testify. This is the person i~entified by Inv. Nunez as having been given the marijuana to bring in to inmate Wilson." The petitioner maintains, inter alia, that the Hearing Officer erred in not making a specific finding that the wfrness or testimony would jeopardize institutional safety or correction goals; or that the testimony was.cumulative and redundant; or that C.O. Calabrese had no direct knowledge of the subject incident. In Matter of Morris-Hill v Fischer ( 104 AD3d 978 [3 d Dept., 2013]) a Hearing Officer did not attempt to secure the testimony of a correction officer because he had retired. The Appellate Division found "the Hearing Officer should have made further inquiry to 3 [* 4] determine if the correction officer would testify even though he was retired.~' (id., at 979). The situation here is close to that in MorriswHill, from the sta;ndpoint that C.O. Calabrese was suspended from state employment. However, in the instant case, the Hearing Officer made actual contact with C.O. Calabrese, and inquired if he was willing to testify, which he was not. The Court is mindful of a line of cases, generally applied to inmate witnesses, that requires the Hearing Officer to verify the reason why an i_ nate witness has refused to testify m (see Matter of Hill v Selsky, 19 AD3d 64 [3rd Dept., 2005]; Matter of Moye v Fischer, 93 AD3d 1006 [3d Dept., 2012]). Where an inmate witness refuses to testify, it is incumbent upon the Hearing'Officer, to conduct a personal inquiry into the reason why, unless a genuine reason for the ~efusal is apparent from the record and the Hearing Officer has made a sufficient inquiry into the facts surrounding the refusal to asc_rtain its authenticity (see e Matter of Abdur-Raheem v Prack, 98 AD3d 1152 (3dDept., 2012]). Here, the Court spoke directly to C.O. Calabrese , who indicated he would not testify. Also, there is sufficient information in the record to provide a genuine reason why C.O. Calabrese would refuse to testify (which includes an investigation conducted by the Inspector General's Office into the incident; the suspension of Officer Calabrese from employinent; and the prospect of criminal charges being lodged against him). Under such circumstances, there was no need for the Hearing Officer to inquire concerning the reason underlying Officer Calabrese's refusal to testify. The Court concludes that the petition must be dismissed. The Court has reviewed _ and considered petitioner1s remammg arguments and contentions and·finds them to be without merit. 4 [* 5] The Court finds that the determination was not made in violation oflawful procedure, is not affected by an error oflaw, and is not irrational, arbitrary and capricious, or constitute an abuse of discretion. The Court concludes that the petition must be dismissed. The Court observes that certain records of a confidential nature relating to the petitioner were submitted to the Court as a part of the record. The Court, by separate order, is sealing all records submitted for -in camera review. Accordingly it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute; the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signh1g of this decision/order/judgment and delivery of this decision/order/judgment 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 October/~ Dated: , 2013 Troy, New York Papers Considered: 1. 2. 3. Notice of Petition dated May 24, 2013, Petition, Supporting Papers and Exhibits Answer Dated July 19, 2013, Supporting Papers and Exhibits Reply Affirmation of Charles Z. Feldman, Esq. Dated July 25, 2013 5
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