Calendar Date: June 6, 2013
Leonard Hinton, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: Peters, P.J., Rose, Stein and McCarthy, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with violent conduct, committing an unhygienic act, harassment, threats and a mess hall violation. According to the report, after a correction officer placed a cup of coffee on petitioner's "feed up hatch, " petitioner intentionally used his breakfast tray to push the coffee off the hatch so that it spilled onto the officer and the floor. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. The determination was affirmed on administrative review, prompting the commencement of this CPLR article 78 proceeding.
Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of harassment, threats and a mess hall violation. The determination with respect to these charges must therefore be annulled but, as petitioner has served the penalty and there was no loss of good time, the matter need not be remitted for a redetermination of the penalty (see Matter of Franza v Venettozzi, 98 A.D.3d 782, 783 ). Further, despite respondent's claim that petitioner abandoned all challenges to the charges of violent conduct and committing an unhygienic act,  our review of petitioner's submissions to this Court confirms that he is pursuing his contention that the misbehavior report, including the charges of violent conduct and committing an unhygienic act, was written in retaliation for numerous harassment grievances that he previously filed against the author of the misbehavior report.
In that regard, petitioner maintains that the Hearing Officer improperly denied his right to call witnesses at the hearing. Petitioner sought to call an inmate who did not witness the incident but purportedly heard a remark from a correction officer that "we finally got him." Contrary to petitioner's claim, this alleged remark does not establish that the misbehavior report was unfounded. Rather, it merely suggests that correction officers had been trying to catch him violating prison rules and had finally succeeded. Accordingly, there was no error in denying the witness as irrelevant (see Matter of Dallio v Fischer, 68 A.D.3d 1380, 1380 ; Matter of Washington v Napoli, 61 A.D.3d 1243, 1243 , lv denied 13 N.Y.3d 704 ; compare Matter of H'Shaka v Fischer, 100 A.D.3d 1056, 1057 ).
Petitioner also sought to call an investigator from the Inspector General's office. Although petitioner now claims that the proposed witness investigated this incident, at the hearing he indicated only that the proposed witness had investigated his previously filed complaints of harassment and official misconduct. The Hearing Officer accepted the fact that petitioner had previously complained of harassment, and there is no indication that the proposed witness ever investigated the incident that is the subject of the misbehavior report. Accordingly, the proposed witness had no relevant testimony regarding this incident, and we find no error in the Hearing Officer's refusal to call him (see Matter of Tafari v Rock, 96 A.D.3d 1321, 1321 , lv denied 19 N.Y.3d 810 ; Matter of Tafari v Fischer, 93 A.D.3d 1054, 1054-1055 , lv dismissed 19 N.Y.3d 1007 ; compare Matter of Diaz v Fischer, 70 A.D.3d 1082, 1082-1083 ). Similarly, we are unpersuaded by petitioner's claim that he was denied the right to produce evidence of a grievance he had filed months prior to the incident, inasmuch as the Hearing Officer accepted the fact that petitioner had previously filed complaints (see Matter of Washington v Napoli, 61 A.D.3d at 1243).
Peters, P.J., Rose, Stein and McCarthy, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of harassment, threats and a mess hall violation; petition granted to that extent and respondent is directed to expunge all references thereto ...