IN RE: Edward RANDOLPH (2021)

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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with assaulting staff, engaging in violent conduct, interfering with an employee, engaging in a movement violation, refusing a direct order and creating a disturbance.  Following a tier III disciplinary hearing, petitioner was found guilty of assaulting staff, engaging in violent conduct, interfering with an employee and engaging in a movement violation and not guilty of the remaining charges.  Other than a modification of the penalty imposed, that determination of guilt was affirmed upon administrative appeal.  Petitioner thereafter commenced this CPLR article 78 proceeding.

Contrary to petitioner's contention, the misbehavior report, related memoranda and documentation, video evidence and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1424, 80 N.Y.S.3d 505 [2018];  Matter of Land v. Annucci, 156 A.D.3d 1103, 1104, 66 N.Y.S.3d 726 [2017]).  Petitioner's contention that the correction officers' memoranda and testimony were exaggerated and/or were inconsistent created a credibility issue for the Hearing Officer to resolve (see Matter of Campos v. Prack, 143 A.D.3d 1020, 1021, 38 N.Y.S.3d 448 [2016];  Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv denied 26 N.Y.3d 904, 2015 WL 5254842 [2015]).

Turning to petitioner's procedural claims, we are unpersuaded by petitioner's contention that he was improperly denied the right to present various witnesses.  We find no error in the Hearing Officer denying petitioner's request to recall certain correction officers for further testimony.  Petitioner had a substantial opportunity at the hearing to question them and, notwithstanding his general assertion that there were inconsistencies in the testimony presented, petitioner refused to elaborate on the alleged inconsistencies or provide questions that he wanted to ask in order to establish that the testimony would not be redundant or irrelevant (see Matter of Mitchell v. Rodriguez, 175 A.D.3d 787, 788–789, 107 N.Y.S.3d 485 [2019]).  In addition, we find no error in the Hearing Officer denying petitioner's request to call a witness regarding petitioner's mental health, as the record reflects that confidential mental health testimony was taken and “testimony regarding the state of [a] petitioner's mental health is confidential” (Matter of Canalas Sanchez v. Annucci, 126 A.D.3d 1194, 1194, 3 N.Y.S.3d 631 [2015];  see Matter of Nelson v. Annucci, 172 A.D.3d 1806, 1806, 100 N.Y.S.3d 784 [2019]).

Petitioner's challenge regarding the failure of three inmate witnesses to testify is also without merit.  There is no indication in the record that any of the inmates previously agreed to testify.  One of the inmates signed a refusal form indicating that he did not want to be involved.  No further inquiry by the Hearing Officer was required (see Matter of Cortorreal v. Annucci, 28 N.Y.3d 54, 59–60, 41 N.Y.S.3d 723, 64 N.E.3d 952 [2016];  Matter of Degraffenreid v. Venettozzi, 178 A.D.3d 1229, 1230, 115 N.Y.S.3d 516 [2019];  Matter of Mitchell v. Rodriguez, 175 A.D.3d at 788, 107 N.Y.S.3d 485).  Another refusal form signed by two correction officers indicated that another requested inmate witness did not provide a reason for not wanting to testify nor did he sign the refusal – which indicated that the inmate just laid on his bed shaking his head.  Petitioner, however, only raised a general objection and did not specifically request any further inquiry by the Hearing Officer to ascertain the reason for the inmate's refusal.  Accordingly, petitioner did not preserve such issue for our review (see Matter of Clark v. Annucci, 170 A.D.3d 1499, 1500, 96 N.Y.S.3d 395 [2019];  Matter of Coombs v. Annucci, 144 A.D.3d 1339, 1340, 40 N.Y.S.3d 801 [2016];  Matter of Blackwell v. Goord, 5 A.D.3d 883, 885, 772 N.Y.S.2d 761 [2004], lv denied 2 N.Y.3d 708, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004]).  Finally, with regard to the inmate witness who had been paroled, the Hearing Officer made “reasonable and substantial efforts” to contact him, but ascertained through a correction facility offender rehabilitation coordinator that he was in treatment at the Office of Mental Health and was unable to testify due to his current situation (Matter of Rambert v. Annucci, 153 A.D.3d 1492, 1493, 59 N.Y.S.3d 909 [2017] [internal quotation marks and citation omitted], lv denied 32 N.Y.3d 916, 2019 WL 691022 [2019];  see Matter of Everett v. Venettozzi, 170 A.D.3d 1408, 1409, 96 N.Y.S.3d 703 [2019];  Matter of Elias v. Fischer, 118 A.D.3d 1193, 1194, 987 N.Y.S.2d 517 [2014]).

To the extent that petitioner contends that the Hearing Officer was biased, the record demonstrates that the hearing was conducted in a fair and impartial manner and the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer (see Matter of Washington v. Venettozzi, 186 A.D.3d 1866, 1868, 129 N.Y.S.3d 355 [2020];  Matter of Medina v. Ranieri, 186 A.D.3d 1848, 1849, 131 N.Y.S.3d 424 [2020]).  Petitioner's remaining contentions, including that he was denied the right to present material evidence and that the hearing extension requests were improperly withheld, have been reviewed and found to be without merit.

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

Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ., concur.