INESTI, PETITIONER PRO SE.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN
OF COUNSEL), FOR RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND
pursuant to CPLR article 78 (transferred to the Appellate
Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Seneca County
[Dennis F. Bender, A.J.], entered April 25, 2017) to annul a
determination, after a tier III hearing, that petitioner had
violated various inmate rules.
hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.
Petitioner commenced this CPLR article 78 proceeding seeking
to annul the determination, following a tier III disciplinary
hearing, that he violated various inmate rules, including
rule 100.11 (7 NYCRR 270.2 [B]  [ii] [assaulting a staff
member]) and rule 104.11 (7 NYCRR 270.2 [B]  [ii]
[engaging in violent conduct]). Petitioner contends that the
Hearing Officer improperly denied his request to call two
inmate witnesses and a witness from the Office of Mental
Health and failed to provide him with the reasons for that
denial. Contrary to petitioner's contention, the Hearing
Officer provided written reasons for the denial and read
those reasons into the record. With respect to the two inmate
witnesses, petitioner waived any claim that he was denied his
right to call those witnesses when he stated at the hearing
that he had "no problem" with the Hearing
Officer's determination that their testimony would be
redundant (see Matter of Dixon v Brown, 62 A.D.3d
1223, 1224 [3d Dept 2009], lv denied 13 N.Y.3d 704');">13 N.Y.3d 704
; Matter of Vigliotti v Duncan, 10 A.D.3d 776,
777 [3d Dept 2004], lv dismissed 4 N.Y.3d 738');">4 N.Y.3d 738
). We conclude that the Hearing Officer did not err in
denying petitioner's request to call the remaining
witness because "the record establishes that the Hearing
Officer had already conducted a confidential interview with
an Office of Mental Health [employee] who, with the benefit
of all of petitioner's records, provided information
pertaining to petitioner's mental health status. Under
[such] circumstances, the Hearing Officer properly found that
any testimony by petitioner's requested witness would
have been redundant" (Matter of Allah v
LeClaire, 51 A.D.3d 1173, 1174 [3d Dept 2008]; see
Matter of Gray v Kirkpatrick, 59 A.D.3d 1092, 1093 [4th
Dept 2009]). Although petitioner also contends that he was
improperly denied the right to confront the employee who
provided the information to the Hearing Officer, he did not
raise that contention on his administrative appeal. He thus
failed to exhaust his administrative remedies with respect to
that contention, "and we have no discretionary authority
to reach it" (Matter of Jeanty v Graham, 147
A.D.3d 1323, 1325 [4th Dept 2017]; see generally Matter
of Nelson v Coughlin, 188 A.D.2d 1071, 1071 [4th Dept
1992], appeal dismissed 81 N.Y.2d 834');">81 N.Y.2d 834 ).
further contends that the Hearing Officer failed to consider
his mental health status at the time of the incident. It is
well settled that, "in the context of a prison
disciplinary proceeding in which the prisoner's mental
state is at issue, a Hearing Officer is required to consider
evidence regarding the prisoner's mental condition"
(Matter of Huggins v Coughlin, 76 N.Y.2d 904, 905
; see 7 NYCRR 254.6 [b]). Here, the record
establishes that the Hearing Officer considered evidence with
respect to petitioner's mental health, and there is
substantial evidence in the record supporting the Hearing
Officer's determination that petitioner's mental
health status did not absolve him of his guilt of the rule
violations (see generally People ex. rel Vega v
Smith, 66 N.Y.2d 130, 139 ).
to petitioner's further contention, there is no
indication in the record that "the determination of the
Hearing Officer was influenced by [any] bias against
petitioner. The mere fact that the Hearing Officer ruled
against... petitioner is insufficient to establish bias'
" (Matter of Wade v Coombe, 241 A.D.2d 977, 977
[4th Dept 1997]; see Matter of Edwards v Fischer, 87
A.D.3d 1328, 1329 [4th Dept 2011]). Petitioner's
admission to violating rule 100.11 precludes him from
challenging the sufficiency of the evidence with respect to
that charge (see Matter of Williams v Annucci, 133
A.D.3d 1362, 1363 [4th Dept 2015]). In any event, we conclude
that the misbehavior report, video recording of the incident,
confidential testimony, and petitioner's admission that
he committed the acts underlying the charges constitute
substantial evidence of petitioner's guilt of all of the
rule violations (see generally Matter of Foster v
Coughlin, 76 N.Y.2d 964, 966 ; Vega, 66
N.Y.2d at 140). Petitioner's testimony and the testimony
of the inmate witnesses merely raised issues of credibility
that the Hearing Officer was entitled to resolve against
petitioner (see Foster, 76 N.Y.2d at 966).
petitioner contends that the penalty imposed was excessive.
Inasmuch as he failed to raise that contention in his
administrative appeal, he " thereby failed to exhaust
his administrative remedies[, ] and this Court has no
discretionary power to reach that issue' "
(Matter of Jay v Fischer, 118 A.D.3d 1364, ...