IN RE: William BONDS (2018)

MEMORANDUM AND JUDGMENT

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 respondent finding petitioner guilty of violating a prison disciplinary rule.

Following an authorized search of his cube, petitioner was charged in a misbehavior report with possession of gang-related materials.  A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty and a penalty was imposed.  Upon administrative review, the penalty was modified, but the determination was otherwise affirmed.  Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.¹

We confirm.  Initially, we find no merit to petitioner's claim that he was denied the right to be present for the search of his cube.  Petitioner, by his own admission, was neither present in nor removed from his cube prior to the search and, therefore, “his presence during the search was not required” (Matter of Rios v. Selsky, 32 A.D.3d 632, 633, 819 N.Y.S.2d 622 [2006];  see Matter of Doyle v. Prack, 115 A.D.3d 1110, 1111, 982 N.Y.S.2d 203 [2014], lv denied 23 N.Y.3d 907, 2014 WL 2922211 [2014];  Matter of Campoverde v. Selsky, 9 A.D.3d 722, 723, 779 N.Y.S.2d 841 [2004];  Matter of Alston v. Goord, 4 A.D.3d 708, 709, 771 N.Y.S.2d 919 [2004];  Matter of Lopez v. Selsky, 300 A.D.2d 975, 975, 750 N.Y.S.2d 906 [2002], lv denied 100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003] ).  Contrary to petitioner's assertion, “there was no requirement that he be called back [to his cube] to view the search” (Matter of Alston v. Goord, 4 A.D.3d at 709, 771 N.Y.S.2d 919).  As to the legality of the search, even assuming – without deciding – that petitioner preserved this issue for our review, he failed to question the correction sergeant who authorized the search as to the basis therefor, and the Hearing Officer was not required to explore this issue on petitioner's behalf (see Matter of Retamozzo v. New York State Dept. of Correctional Servs., 31 A.D.3d 1083, 1084, 819 N.Y.S.2d 199 [2006];  Matter of Samuel v. Goord, 277 A.D.2d 584, 585, 715 N.Y.S.2d 113 [2000] ).  Further, “the basis for the search in the first instance was irrelevant to the issue of whether petitioner possessed the [gang-related materials]” (Matter of Covington v. Harford, 105 A.D.3d 1289, 1290, 963 N.Y.S.2d 610 [2013] [internal quotation marks and citation omitted], lv denied 21 N.Y.3d 862, 972 N.Y.S.2d 219, 995 N.E.2d 182 [2013];  accord Matter of Macedonio v. Annucci, 142 A.D.3d 1215, 1215, 37 N.Y.S.3d 359 [2016] ).

Petitioner's request for two inmate witnesses was properly denied on relevancy grounds, as neither of these witnesses was present for the search of petitioner's cube and, therefore, could not testify as to his possession of gang-related materials (see Matter of Gonzalez v. Venettozzi, 94 A.D.3d 1313, 1314, 942 N.Y.S.2d 686 [2012], lv denied 19 N.Y.3d 812, 2012 WL 4017723 [2012];  Matter of Canty v. Fischer, 92 A.D.3d 1055, 1056, 939 N.Y.S.2d 142 [2012], lv denied 19 N.Y.3d 802 [2012] ).  Additionally, petitioner was not entitled to call these inmates as character witnesses (see Matter of Barca v. Fischer, 80 A.D.3d 1038, 1038, 915 N.Y.S.2d 392 [2011], lv denied 16 N.Y.3d 711, 923 N.Y.S.2d 415, 947 N.E.2d 1194 [2011];  Matter of Rivera v. Selsky, 43 A.D.3d 1210, 1210, 841 N.Y.S.2d 412 [2007];  Matter of Torres v. Goord, 267 A.D.2d 732, 733, 700 N.Y.S.2d 280 [1999];  Matter of Joyce v. Goord, 246 A.D.2d 926, 928, 667 N.Y.S.2d 833 [1998] ).  Finally, contrary to petitioner's assertion, “we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias” (Matter of Lebron v. Annucci, 163 A.D.3d 1387, 1388, 77 N.Y.S.3d 897 [2018];  see Matter of McDonald v. Annucci, 159 A.D.3d 1216, 1217, 69 N.Y.S.3d 841 [2018] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

FOOTNOTES

1.   The petition did not raise the issue of substantial evidence and, hence, this proceeding was improperly transferred;  that said, we will “retain jurisdiction in the interest of judicial economy” (Matter of Thompson v. Annucci, 162 A.D.3d 1365, 1365 n, 75 N.Y.S.3d 436 [2018] )

McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ., concur.