Matter of Williams v Fischer

Appellate Division of the Supreme Court, Third Department

May 20, 2010

507929

Versions:73 AD3d 1364

2010 NY Slip Op 04303

In the Matter of Jameel Williams, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Jameel Williams, Coxsackie, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 a prison disciplinary rule.

After petitioner‘s urine sample twice tested positive for cannabinoids, he was charged in a misbehavior report with using a controlled substance. After a tier III disciplinary hearing, he was found guilty as charged. Petitioner‘s administrative appeal modified the penalty imposed but otherwise affirmed, and this CPLR article 78 proceeding ensued.^*

We now confirm. Contrary to petitioner‘s claim, any inadequately rendered employee assistance provided to him was cured by virtue of the fact that he ultimately obtained all requested documents and had an opportunity to review them (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Parkinson v Selsky, 49 AD3d 985, 986 [2008]). Nor was petitioner denied the right to obtain additional documents at the hearing, as he was provided with those documents and had ample time to familiarize himself with them (see Matter of Anderson v Fischer, 63 AD3d 1462, 1463 [2009]; Matter of Harrison v Fischer, 56 AD3d 917, 917-918 [2008]). The record also reflects that the Hearing Officer appropriately denied petitioner‘s request that another inmate testify, as that testimony was sought solely to explain what occurred at a disciplinary hearing involving the other inmate and was accordingly irrelevant (see Matter of Lozada v Cook, 67 AD3d 1232, 1233 [2009], lv denied 14 NY3d 706 [2010]; Matter of Alexander v Goord, 3 AD3d 638, 638 [2004]). Finally, the record is devoid of proof that the Hearing Officer was biased or that his determination flowed from any alleged bias (see Matter of Lozada v Cook, 67 AD3d at 1233; Matter of Peralta v Fischer, 63 AD3d 1399, 1399 [2009]). Petitioner‘s remaining contentions are meritless.

Cardona, P.J., Spain, Rose, Kavanagh and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Notes

Petitioner has abandoned his claim that the determination was unsupported by substantial evidence in the record due to his failure to raise it in his brief (see ).