IN RE: Massi JONES

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Massi JONES, Petitioner, v. Glenn GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: July 27, 2000

Before CARDONA, P.J., MERCURE, CREW III, SPAIN and LAHTINEN, JJ. Massi Jones, Pine City, petitioner in person. Eliot Spitzer, Attorney-General (Frank Brady of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

As the result of an altercation with another prison inmate, petitioner was charged with violating the prison disciplinary rules that prohibit assaulting an inmate, fighting, engaging in violent conduct, creating a disturbance and refusing a direct order.   Petitioner pleaded guilty with an explanation to the charges of fighting and refusing a direct order and, after a disciplinary hearing, was found guilty of assaulting an inmate and engaging in violent conduct but not guilty of creating a disturbance.   Petitioner commenced this CPLR article 78 proceeding challenging the determination of his guilt on substantive and procedural grounds. We confirm.

 Initially, by pleading guilty with an explanation to the charges of fighting and refusing a direct order, petitioner is precluded from challenging the determination of his guilt on those charges on substantial evidence grounds (see, Matter of Zarvela v. Goord, 270 A.D.2d 532, 533, 704 N.Y.S.2d 680, 681, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 2, 734 N.E.2d 1213;  Matter of Moolenaar v. Goord, 266 A.D.2d 625, 697 N.Y.S.2d 734, appeal dismissed 94 N.Y.2d 900, 707 N.Y.S.2d 145, 728 N.E.2d 341).   Moreover, the misbehavior report and hearing testimony, indicating that petitioner refused several direct orders to stop fighting with another inmate who had accused him of cutting him on the face, provide substantial evidence of petitioner's guilt on the remaining charges (see, Matter of Acevedo v. Superintendent of Elmira Correctional Facility, 265 A.D.2d 763, 697 N.Y.S.2d 703;  Matter of Edmonson v. Coombe, 255 A.D.2d 847, 682 N.Y.S.2d 116).

 Turning to petitioner's procedural arguments, although the Hearing Officer failed to provide a written explanation for the denial of petitioner's request to call his two employee assistants as witnesses (see, 7 NYCRR 254.5 [a] ), this does not warrant annulment of the determination because the record discloses the reason for the denial, i.e., the assistants' testimony was irrelevant to the legal determination of whether the hearing was prematurely commenced (see, e.g., Matter of Bonez v. Senkowski, 265 A.D.2d 713, 696 N.Y.S.2d 574;  Matter of Morrison v. Selsky, 246 A.D.2d 939, 667 N.Y.S.2d 856).   Finally, the Hearing Officer's refusal to recall a witness whose testimony would be redundant and irrelevant was neither improper nor indicative of bias (see, Matter of Watson v. Goord, 265 A.D.2d 700, 696 N.Y.S.2d 586;  Matter of McBride v. Selsky, 257 A.D.2d 930, 684 N.Y.S.2d 669).

Petitioner's remaining arguments have been examined and rejected as unpersuasive.

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

LAHTINEN, J.

CARDONA, P.J., MERCURE, CREW III and SPAIN, JJ., concur.

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