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In re Blackwell

Supreme Court of New York, Third Department

May 23, 2013

In the Matter of JAMES BLACKWELL, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: April 3, 2013

James Blackwell, Marcy, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.

Before: Rose, J.P., Stein, Spain and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review three determinations of respondents which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in three misbehavior reports with violating various prison disciplinary rules stemming from three separate incidents. Petitioner was found guilty of all charges following two tier II and one tier III disciplinary hearings. The determinations were affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

Petitioner's claim that the misbehavior reports were filed in retaliation for various grievances that he filed presented a credibility issue for the Hearing Officer to resolve (see Matter of McNeil v Fischer, 95 A.D.3d 1520, 1521 [2012]; Matter of McFadden v Venettozzi, 65 A.D.3d 1401, 1402 [2009]). We are unpersuaded by petitioner's assertion that he improperly was denied the right to call certain witnesses at the hearings. The record reflects that, in connection with the December 16, 2011 disciplinary hearing, certain inmate witnesses signed refusal forms indicating that they could not provide relevant information and, because those inmates had not previously agreed to testify, there was no requirement that the Hearing Officer personally interview them (see Matter of Williams v Goord, 36 A.D.3d 1033, 1033 [2007]). Furthermore, the Hearing Officer properly denied petitioner's request at the October 13, 2011 disciplinary hearing to call the Acting Superintendent at the correctional facility, as he was not present for the incident and had no relevant testimony (see Matter of Walker v Fischer, 71 A.D.3d 1309, 1309 [2010], appeal dismissed 14 N.Y.3d 912 [2010]). Petitioner's remaining contentions are either unpreserved for our review or without merit.

Rose, J.P., Stein, Spain and Egan Jr., JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.


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