Brown v. Selsky

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. A correction officer observed petitioner repeatedly flush the toilet in his cell after he had stuffed a shirt inside it causing water to spill all over the floor. Petitioner ignored the officer’s directive to stop and made a threatening comment. As a result, he was charged in a misbehavior report with refusing a direct order, making threats and intentionally flooding his cell. Petitioner was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. The misbehavior report, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Campisi v Goord, 23 AD3d 730, 731 [2005]; Matter of Abbas v Selsky, 22 AD3d 982, 983 [2005]). We find no error in the Hearing Officer’s denial of petitioner’s request to recall inmate witnesses whose testimony would have been irrelevant or redundant (see Matter of Williams v Selsky, 257 AD2d 932, 933 [1999]; Matter of Gill v Selsky, 240 AD2d 831, 831 [1997]). Likewise, the record does not support petitioner’s claim that the Hearing Officer improperly denied him the right to make a statement at the hearing. Lastly, while petitioner further asserts that the Hearing Officer did not make an adequate inquiry into the refusal of certain inmate witnesses to testify, that argument is unpreserved due to petitioner’s failure to object at the hearing (see Matter of Gonzalez v West, 29 AD3d 1245, 1246 [2006]; Matter of Otero v Goord, 17 AD3d 805, 806 [2005]). The remaining arguments advanced by petitioner have been examined and found to be unpreserved for review and, in any event, without merit. Cardona, PJ., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.