State of New York Supreme Court, Appellate Division Third Judicial Department
February 9, 2012
IN THE MATTER OF MOSHE CINQUE CANTY, ALSO KNOWN AS MOSHE CINQUE OWUSU SANKOFA OLUGBALA, APPELLANT,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered March 15, 2011 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
The opinion of the court was delivered by: Peters, J.P.,
MEMORANDUM AND ORDER
Calendar Date: December 12, 2011
Before: Peters, J.P., Spain, Malone Jr., McCarthy and Garry, JJ.
During a search of petitioner's cell, correction officials found a document written by petitioner containing gang-related references that was hidden inside a Bible. As a result, he was charged in a misbehavior report with possessing gang-related materials. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, raising only procedural claims. Following service of respondent's answer, Supreme Court dismissed the petition and this appeal ensued.
We affirm. Initially, we find no merit to petitioner's claim that he was improperly removed from the hearing inasmuch as he became disruptive and continued to raise issues previously addressed by the Hearing Officer despite the Hearing Officer's numerous warnings that he would be removed from the hearing if he continued to engage in such conduct (see Matter of Bunting v Fischer, 85 AD3d 1473, 1474 , lv denied 17 NY3d 712 ; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 ). Significantly, petitioner was not removed from the hearing until after all of the evidence had been presented. Likewise, we find no error in the Hearing Officer's denial of an inmate witness who was not present on the gallery at the time petitioner's cell was searched. This individual did not have personal knowledge of the incident and his testimony was, therefore, irrelevant to petitioner's defense that the document containing gang-related references was planted in his cell (see Matter of McLean v Fischer, 63 AD3d 1468, 1469 ; Matter of Kalwasinski v Goord, 31 AD3d 1081, 1982 ). Additionally, another inmate witness had already testified regarding which staff members were present in petitioner's cell for the search, rendering the further testimony redundant (see Matter of Scott v Fischer, 57 AD3d 1035, 1036 , lv denied 12 NY3d 705 ). Accordingly, Supreme Court properly dismissed the petition.
Spain, Malone Jr., McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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