Green v. Sticht

• Decision Date: 02 January 2015
• Citation: 124 A.D.3d 1338,1 N.Y.S.3d 670
• Parties: In the Matter of Shawn GREEN, Petitioner, v. Thomas J. STICHT, Acting Superintendent, Wende Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1338

1 N.Y.S.3d 670

In the Matter of Shawn GREEN, Petitioner,

v.Thomas J. STICHT, Acting Superintendent, Wende Correctional Facility, Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Jan. 2, 2015.

Shawn Green, Petitioner Pro Se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination following a tier III hearing that he violated two inmate rules, and also seeking to annul the determinations of the Central Office Review Committee of the Department of Correctional Services denying four separate grievances. Contrary to the contention of petitioner, we conclude that Supreme Court properly transferred the entire proceeding to this Court inasmuch as the "petition raises a substantial evidence question, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804(g)" (Matter of Quintana v. City of Buffalo, 114 A.D.3d 1222, 1223, 979 N.Y.S.2d 760, lv. denied 23 N.Y.3d 902, 2014 WL 1775991 ).

Contrary to petitioner's further contention, we conclude that the inmate misbehavior report "provided him with adequate notice of the charges as required by 7 NYCRR 251–3.1(c)" (Matter of Jones v. Fischer, 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 ; see Matter of Quintana v. Selsky, 268 A.D.2d 624, 625, 701 N.Y.S.2d 463 ; Matter of Couch v. Goord, 255 A.D.2d 720, 721–722, 682 N.Y.S.2d 106 ). We reject the contention of petitioner that his employee assistant was ineffective because he failed to obtain certain documentary evidence. The employee assistant "cannot be faulted for ... failing to provide petitioner with documentary evidence that did not exist" (Matter of

Melluzzo v. Selsky, 287 A.D.2d 850, 851, 731 N.Y.S.2d 518 ), and the record establishes that petitioner was provided with all relevant documentation except that containing confidential information (see Matter of Lebron v. McGinnis, 26 A.D.3d 658, 658–659, 810 N.Y.S.2d 526, lv. denied 7 N.Y.3d 704, 819 N.Y.S.2d 871, 853 N.E.2d 242 ).

We reject petitioner's contention that the record lacks substantial evidence to support the determination that he violated the two inmate rules as charged in the misbehavior report. Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). We conclude that the misbehavior report, the testimony of two correction officers, and information received from a confidential informant constitute substantial evidence that petitioner violated the charged inmate rules (see Matter of Stewart v. Fischer, 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618, lv. denied 22 N.Y.3d 858, 2013 WL 6598719 ; Matter of Cookhorne v. Fischer, 104 A.D.3d 1197, 1198, 960 N.Y.S.2d 798 ; Matter of Britt v. Evans, 100 A.D.3d 1408, 1408–1409, 953 N.Y.S.2d 766 ). Petitioner's contention that the charges were brought against him in retaliation for grievances he filed merely presented an issue of credibility that the Hearing Officer was entitled to resolve against him (see Britt, 100 A.D.3d at 1409, 953 N.Y.S.2d 766 ; Matter of Bramble v. Mead, 242 A.D.2d 858, 858–859, 662 N.Y.S.2d 960, lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630 ), and the record does not support petitioner's contention that the Hearing Officer was biased against him (see Matter of Sabino v. Hulihan, 105 A.D.3d 1426, 1426, 963 N.Y.S.2d 897 ). Contrary to petitioner's further contention, the Hearing Officer properly refused petitioner's request to call witnesses who lacked firsthand knowledge of the incident in question and who would have provided testimony concerning any alleged retaliation that was redundant at best (see 7 NYCRR 254.5 [a]; Matter of Huggins v. Noeth, 106 A.D.3d 1351, 1352, 965 N.Y.S.2d 667 ; Matter of Encarnacion v. Goord, 286 A.D.2d 828, 829, 730 N.Y.S.2d 578, lv. denied 97 N.Y.2d 606, 738 N.Y.S.2d 289, 764 N.E.2d 393 ).

With respect to the determinations denying petitioner's grievances, it is well established that "[j]udicial review of the denial of an inmate grievance is limited to whether such determination was arbitrary and capricious, irrational or affected by an error of law" (Matter of Hutchinson v. Fischer, 112 A.D.3d 1245, 1245, 977 N.Y.S.2d 506, lv. denied 23 N.Y.3d 903, 2014 WL 1884899 ; see Matter of Wooley v. New York State Dept. of...