IN RE: Dennis McLEAN

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

IN RE: Dennis McLEAN, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: June 25, 2009

Before:  CARDONA, P.J., MERCURE, ROSE, KAVANAGH and STEIN, JJ. Dennis McLean, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was frisked by correction officers during a routine visit to receive medication and was found to have a razor blade melted into a toothbrush hidden in his waistband.   After its discovery, petitioner repeatedly struck the officer who frisked him, and assaulted several other officers during the ensuing struggle to subdue him.   Petitioner was subsequently charged in a misbehavior report with assaulting staff members, possession of a weapon, refusing a direct order, violent conduct and noncompliance with frisk procedures.   After a tier III disciplinary hearing, petitioner was found guilty of all charges except noncompliance with frisk procedures, and an unsuccessful administrative appeal followed.   Petitioner then commenced this CPLR article 78 proceeding challenging the determination of his guilt on both substantive and procedural grounds and we now confirm.

 Initially, we find that the misbehavior report, together with the extensive testimony and documentation, provide substantial evidence to support the determination of petitioner's guilt (see Matter of Jackson v. Dubray, 56 A.D.3d 919, 867 N.Y.S.2d 750 [2008];  Matter of Perez v. Dubray, 55 A.D.3d 1119, 865 N.Y.S.2d 765 [2008] ).   To the extent that petitioner claims that the disciplinary charges were fabricated in retaliation for his cooperation with an investigation into the abuse of another inmate, that raised a question of credibility to be resolved by the Hearing Officer (see Matter of Jackson v. Fischer, 59 A.D.3d 820, 820, 873 N.Y.S.2d 765 [2009];  Matter of Perez v. Dubray, 55 A.D.3d at 1119, 865 N.Y.S.2d 765).

 Turning to petitioner's procedural claims, we find that he was not denied his right to call witnesses.   Contrary to petitioner's contention, he was allowed to call a witness from the Inspector General's office, who testified that he did not have any information other than that petitioner had filed a grievance in a matter concerning another inmate.   With regard to the request to call George Morales, the inmate who was the subject of petitioner's prior grievance and who purportedly had knowledge about threats made against petitioner, it was appropriately denied inasmuch as Morales had no knowledge of the events underlying the misbehavior report and, therefore, was unable to provide relevant testimony (see Matter of Brown v. Goord, 11 A.D.3d 857, 858, 783 N.Y.S.2d 151 [2004];  Matter of Orr v. Selsky, 290 A.D.2d 768, 769, 736 N.Y.S.2d 508 [2002] ).   Additionally, petitioner's request to call Correction Officer Feeney was properly denied, inasmuch as it would have been redundant to the testimony of four other witnesses, whose testimony the Hearing Officer credited (see Matter of Scott v. Fischer, 57 A.D.3d 1035, 1036, 868 N.Y.S.2d 816 [2008], lv. denied 12 N.Y.3d 705, 879 N.Y.S.2d 51, 906 N.E.2d 1085 [2009] ).   Furthermore, the failure to provide petitioner with a written explanation for the denial does not require annulment because the record expressly reveals the reason (see Matter of Miller v. Costello, 304 A.D.2d 916, 917, 756 N.Y.S.2d 911 [2003];  Matter of Jones v. Goord, 274 A.D.2d 902, 903, 711 N.Y.S.2d 609 [2000] ).

 Finally, we find that absent some indication that disclosure of the medical records of the injured correction officers would jeopardize institutional safety, their denial was error (see Matter of Mack v. Goord, 49 A.D.3d 1045, 1046, 853 N.Y.S.2d 704 [2008], lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008] ).   However, we also find that error to be harmless in light of the overwhelming evidence against petitioner (see id.).   Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

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

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