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In the Matter of Aurel Smith v. Daniel Martuscello Jr.

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


June 30, 2011

IN THE MATTER OF AUREL SMITH, PETITIONER,
v.
DANIEL MARTUSCELLO JR., AS SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND ORDER

Calendar Date: May 11, 2011

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

While making rounds, a correction officer observed a towel hanging across the door of petitioner's cell and petitioner was given a direct order to remove the towel, which he ignored. Thereafter, petitioner became irate and threatened the officer, using profanity, which resulted in a misbehavior report charging him with various disciplinary infractions. Following a tier II disciplinary hearing, petitioner was found guilty of refusing a direct order, making threats and harassment. That determination was upheld on administrative appeal, prompting this CPLR article 78 proceeding.

We confirm. The detailed misbehavior report, along with the testimony of petitioner's inmate witness that petitioner and the officer were involved in an altercation about a towel, provide substantial evidence to support the determination of guilt (see Matter of Barnett v Fischer, 78 AD3d 1351, 1352 [2010]; Matter of Douglas v Fischer, 76 AD3d 1162, 1162 [2010]). Notably, when the officer who authored the report appeared to testify at the hearing, petitioner withdrew his request for the officer's testimony. The Hearing Officer did not err in denying petitioner's request to call the escort officer as a witness, as petitioner admitted that the officer had no direct knowledge of the incident (see Matter of Ellison v Fischer, 79 AD3d 1538, 1539 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1042-1043 [2010]). Finally, we find that meaningful judicial review was not precluded by the relatively minor gaps in the hearing transcript (see Matter of Piper v Bezio, 81 AD3d 1049, 1050 [2011]; Matter of Anthony v Fischer, 81 AD3d 1027, 1028 [2011]).

Petitioner's remaining contentions have been examined and found to be without merit.

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110630

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