Linz v. Goord

Dec 22, 1997
Versions:245 A.D.2d 514
666 N.Y.S.2d 487
1997 N.Y. App. Div. LEXIS 13248

—Proceeding pursuant to CPLR article 78 to review a determination of the Department of Correctional Services, dated September 5, 1996, which, after a hearing, found the petitioner guilty of possession of escape paraphernalia and imposed penalties.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

The respondent acted within its authority to order a rehearing upon the petitioner’s request for a reconsideration of the original determination (see, Matter of Dawes v Coughlin, 83 NY2d 597; Matter of Brown v Coughlin, 214 AD2d 874).

In reaching its determination that the petitioner violated prison rule 108.13 by possessing escape paraphernalia (see, 7 NYCRR 270.2 [B] [9] [iv]), the respondent relied upon, among other things, misbehavior reports; the testimony of the officers who prepared the reports; the documents found in the petitioner’s possession, including a map and escape plan; and confidential testimony. Upon our review of the record, including the confidential testimony, we find that the respondent’s determination was supported by substantial evidence (see, Matter of Bryant v Coughlin, 77 NY2d 642, 647; People ex rel. Vega v Smith, 66 NY2d 130; Matter of James v Strack, 214 AD2d 674).

The petitioner was not deprived of his right to call a witness where that witness refused, at the hearing, to testify and a Refusal to Testify form was signed and a reason provided (see, Matter of Laureano v Kuhlmann, 75 NY2d 141; cf., Matter of Hynes v Scully, 203 AD2d 462; Matter of Afrika v Selsky, 199 AD2d 315).

The petitioner’s remaining contentions are without merit (see, Matter of Laureano v Kuhlman, supra; Matter of Pinargote v Berry, 147 AD2d 746) or do not warrant annulment of the determination (cf., Matter of Porter v Cuomo, 191 AD2d 852; Matter of Morales v Senkowski, 165 AD2d 393). Bracken, J. P., Thompson, Krausman and Luciano, JJ., concur.