Orr v. Selsky

Jan 17, 2002
Versions:290 A.D.2d 768
736 N.Y.S.2d 508
2002 N.Y. App. Div. LEXIS 434

*769Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on a staff member and creating a disturbance. The reporting correction officer stated in the misbehavior report that she had been escorting petitioner back to his cell following a disciplinary hearing when he pushed her against a wall, pressing his body against hers. The officer pushed petitioner away and struck him with her baton. Petitioner responded by kicking her in the shin. He was subdued by a second officer who had witnessed the incident.

Substantial evidence of petitioner’s guilt was presented at the disciplinary hearing in the form of the misbehavior report, the testimony given by the reporting officer and by the officer who was present when the incident occurred (see, Matter of Cornwall v Goord, 287 AD2d 911; Matter of Crosby v Selsky, 284 AD2d 702). Although petitioner testified that he never touched the reporting officer and that her striking him was unprovoked, this raised an issue of credibility for resolution by the Hearing Officer (see, Matter of Giles v Selsky, 287 AD2d 829; Matter of Grant v Selsky, 281 AD2d 676). Petitioner contends that his right to call witnesses was violated by the Hearing Officer’s refusal to call the facility’s psychologist to testify that he had previously expressed concern that the two officers involved in this incident would file false charges against him in retaliation for grievance complaints he had filed, against them. This testimony was properly deemed irrelevant, however, as the psychologist had no firsthand knowledge of the incident in question or of petitioner’s role therein (see, Matter of Quiles v Goord, 271 AD2d 775; Matter of Reynoso v Coombe, 229 AD2d 732, lv denied 89 NY2d 801). Petitioner’s remaining contentions have been examined and found to be without merit.

Cardona, P.J., Crew III, Peters, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.