Almonor 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. We are unpersuaded by petitioner’s challenge to the determination of the Commissioner of Correctional Services finding petitioner guilty of violating prison disciplinary rules prohibiting assault on an inmate, assault on staff (two charges), fighting and possession of a weapon arising out of an incident in which petitioner slashed another prison inmate with a razor and also cut Correction Officer S. Robisch during the course of his effort to subdue petitioner. First, we conclude that the Hearing Officer did not err in taking Robisch’s testimony via speaker phone due to the fact that Robisch was covering the facility housing unit at the time of the hearing and there was no one available to relieve him (see, Matter of Greany v Irvin, 221 AD2d 1027, lv denied 88 NY2d 803). Notably, petitioner was present at the time of the questioning and, in fact, presented three pages of questions which the Hearing Officer put to Robisch on petitioner’s behalf. Second, notwithstanding Robisch’s candid acknowledgment that his injury possibly could have been sustained accidentally, record evidence that petitioner resisted Robisch’s effort to subdue him and that Robisch’s elbow was cut by the razor blade in the process provides sufficient factual support for the finding that petitioner was guilty of assault on staff (cf., Matter of Lashway v Coughlin, 220 AD2d 912). Petitioner’s remaining contentions are either unpreserved for our review or have been found to be lacking in merit. Mercure, J. P., Peters, Spain, Carpinello and Graffeo, JJ., 930 concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.