Gomez v. FischerGomez v. Fischer
Petitioner Eddie Gomez (hereinafter petitioner), a prison inmate, was observed reaching into his pants during a visit with his fiancée, petitioner Olga Padilla.* The visit was terminated and a search of Padilla revealed that she possessed pills that she
We confirm the determination finding petitioner guilty of violating certain prison disciplinary rules. The misbehavior report, related documentary evidence and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Partee v Bezio, 67 AD3d 1224 [2009], lv denied 14 NY3d 702 [2010]; Matter of Brown v Fischer, 67 AD3d 1221 [2009]). The fact that Padilla testified at the hearing—contrary to the admission she previously made to investigators—that petitioner did not give her the pills presented a credibility issue to be resolved by the Hearing Officer (see Matter of Pellot v Fischer, 67 AD3d 1231 [2009]; Matter of Leigh v Fischer, 56 AD3d 1095 [2008]). Concerning petitioner’s assertion that he was denied documentary evidence when the Hearing Officer refused the admission of letters written by Padilla, we find no error inasmuch as that evidence would have been redundant to testimony presented at the hearing (see Matter of Sierra v Dubray, 58 AD3d 970, 971 [2009]; Matter of Williams v Goord, 31 AD3d 1086, 1087 [2006]). We also find that meaningful judicial review was not precluded by the relatively minor gaps in the hearing transcript representing portions of the tape that were inaudible (see Matter of Cowart v Bezio, 67 AD3d 1152, 1152 [2009]; Matter of Hodge v Selsky, 53 AD3d 953, 954 [2008]).
With regard to petitioner’s contention that a number of his FOIL requests were improperly denied, we note that there is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under
Turning to petitioner’s specific requests, we first find that petitioner’s request for any statements made by Padilla on June 14, 2008 during her interview with investigators was improperly denied. Statements by a witness must be disclosed absent a showing that he or she was a confidential informant or requested or was promised anonymity, or that his or her life or safety would be endangered by disclosure (see Matter of John H. v Goord, 27 AD3d 798, 800 [2006]; Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [2009]). No such showing was made here. Similarly, petitioner should be provided with a copy of the letter sent by Padilla on or about July 14, 2008, in which she appealed from the decision that suspended her rights of contact visitation with petitioner.
We next address petitioner’s request for copies of memoranda allegedly written by correction officers Eastwood, Portalatin and Williams on June 14, 2008 in relation to the incident that engendered petitioner’s misbehavior report. Contrary to respondents’ assertion that the documents do not exist because they were not found in petitioner’s file, the requested memoranda were specifically referenced in another document produced by respondents on August 26, 2008. Therefore, such memoranda should be provided to petitioner unless respondents certify to petitioner that a “diligent search” reveals that they cannot be located (
Petitioner’s request for all communications from him received by “the administration” between September 8, 2008 and September 19, 2008 was improperly denied for lack of specificity. Upon our review of the record, we find that the items were
Because the record before us is insufficient to enable us to determine whether Supreme Court permitted petitioner to file the supplemental petition in the record (see
To the extent that the remaining FOIL requests were reasonably described and enumerated in the initial petition and are properly before us, we find that respondents either provided the requested items or sufficiently articulated a valid basis for denying the requests. The parties’ remaining contentions have been examined and are without merit.
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur.
Adjudged that the determination finding petitioner guilty of violating certain prison disciplinary rules is confirmed, without costs, and petition dismissed to that extent. Adjudged that the determinations denying petitioner’s Freedom of Information Law requests are modified, without costs, petition granted to the extent of directing respondents to release to petitioner all appropriate items consistent with this Court’s decision, matter remitted for further proceedings not inconsistent with this Court’s decision, and, as so modified, confirmed.