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In the Matter of Injah Tafari v. Brian Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


March 17, 2011

IN THE MATTER OF INJAH TAFARI, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Appeal from a judgment of the Supreme Court (Muller, J.), entered July 23, 2010 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review two determinations of respondent finding petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND ORDER

Calendar Date: February 2, 2011

Before: Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ.

Petitioner, a prison inmate, was served with a misbehavior report charging him with the violation of various disciplinary rules after he wrote three letters to a female facility employee whom he had been given direct orders not to contact. Following a tier III disciplinary hearing, he was found guilty of harassment and refusing a direct order and that determination was affirmed on administrative appeal. A second misbehavior report was served after petitioner wrote that same employee another letter and, following a separate tier III disciplinary hearing, he was found guilty of harassment, refusing a direct order and stalking. That determination was also affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding to challenge both determinations. Supreme Court dismissed the petition, and this appeal ensued.

We affirm. Contrary to petitioner's contention, the Hearing Officer adequately protected his right to call witnesses, despite the failure to elicit a reason for his inmate witnesses' refusal to testify beyond a desire not to be involved (see Matter of Tafari v Fischer, 78 AD3d 1405, 1406 [2010], lv denied ___ NY3d ___ [Feb. 15, 2011]; Matter of Hill v Selsky, 19 AD3d 64, 67 [2005]). We also conclude that, with regard to the first hearing, the extensions were properly requested and granted to permit petitioner to receive assistance or to attempt to secure the testimony of his witnesses, and the hearing was completed within the time limits required (see Matter of Sierra v Dubray, 58 AD3d 970, 970 [2009]; Matter of Mackie v Goord, 49 AD3d 952, 953 [2008]). The fact that one request for an extension was made after a previous extension had expired does not render it invalid (see Matter of Thompson v Votraw, 65 AD3d 1403, 1404-1405 [2009]; Matter of Porter v Goord, 6 AD3d 1013, 1014 [2004], lv denied 3 NY3d 602 [2004]). Petitioner's remaining contentions are not properly before us.

Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110317

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