Tirado v. Goord

Apr 17, 2008
Versions:50 A.D.3d 1332
854 N.Y.S.2d 822

Appeal from a judgment of the Supreme Court (Hard, J.), entered July 11, 2007 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of violent conduct, creating a disturbance, assaulting staff, interfering with an employee and refusing a direct order. Upon administrative appeal, the determination was affirmed, with a reduced penalty. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition, prompting this appeal.

We affirm. The record reflects that petitioner was afforded meaningful employee assistance. Although petitioner claims that his employee assistance was inadequate because the assistant failed to interview or locate certain inmate witnesses, petitioner first requested those witnesses at the hearing and was not able to identify them. Nevertheless, the Hearing Officer adjourned the hearing so that the assistant could investigate petitioner‘s request. Accordingly, any alleged deficiency was remedied and there is no evidence that petitioner was prejudiced in any way (see Matter of Amaker v Selsky, 43 AD3d 547, 547-548 [2007], lv denied 9 NY3d 814 [2007]; Matter of Rosa v Goord, 14 AD3d 747, 748 [2005]). Finally, although the Hearing Officer did not provide a written explanation for his refusal to allow testimony from the correction officers that escorted petitioner to the infirmary, the record reveals that such testimony would have been irrelevant as those individuals lacked personal knowledge of the incident (see Matter of Hannah v Burge, 43 AD3d 1234 [2007]; Matter of Daum v Goord, 274 AD2d 715, 716 [2000]).

Petitioner‘s remaining claims were not properly preserved for our review (see Matter of Pigmentel v Selsky, 19 AD3d 816, 817 [2005]).

Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.