Taylor v. Fischer

After a correction officer observed petitioner acting in a suspicious manner, petitioner was pat frisked and a seven-inch ice pick style weapon was found in the waistband of his pants. As a result, petitioner was charged in a misbehavior report with possession of a weapon, and he was found guilty following a tier III disciplinary hearing. That determination was affirmed on [1299] administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.* We confirm. Initially, petitioner contends that the Hearing Officer failed to properly investigate the reason why one of petitioner’s requested inmate witnesses refused to testify. However, this issue is unpreserved for this Court’s review inasmuch as the inmate executed a witness refusal form and petitioner, when informed during the hearing of the inmate’s refusal, failed to object or request that the Hearing Officer make further inquiry (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Coleman v Selsky, 65 AD3d 1400, 1401 [2009]). With regard to an inmate witness who testified, we conclude that the Hearing Officer appropriately limited such testimony to issues that were relevant to the charges in the misbehavior report (see 7 NYCRR 254.5 [a]; Matter of Griffen v Goord, 277 AD2d 612, 613 [2000]; see generally Matter of Harvey v Bradt, 81 AD3d 1003, 1004 [2011]). Finally, we do not find the penalty assessed to be so “shocking to one’s sense of fairness” as to be excessive (Matter of Phipps v Fischer, 82 AD3d 1396, 1397 [2011]). Mercure, J.E, Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. Footnotes [*] This proceeding appears to have been improperly transferred inasmuch as the issue of substantial evidence was not raised in the petition (see Matter of Barca v Fischer, 80 AD3d 1038, 1038 n [2011], lv denied 16 NY3d 711 [2011]; Matter of Davis v State of New York, 75 AD3d 1022, 1022 n [2010]). However, we will retain jurisdiction and entertain the merits in the interest of judicial economy.