In the Matter of Eddie M. Robinson v. Fischer

• Decision Date: 25 March 2011
• Citation: 82 A.D.3d 1630,2011 N.Y. Slip Op. 02197,919 N.Y.S.2d 633
• Parties: In the Matter of Eddie M. ROBINSON, Petitioner,v.Brian FISCHER, Commissioner, New York State Department of Correctional Services and John Lempke, Superintendent, Five Points Correctional Facility, Respondents.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1630

919 N.Y.S.2d 633

2011 N.Y. Slip Op. 02197

In the Matter of Eddie M. ROBINSON, Petitioner,

v.Brian FISCHER, Commissioner, New York State Department of Correctional Services and John Lempke, Superintendent, Five Points Correctional Facility, Respondents.

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

March 25, 2011.

Eddie M. Robinson, Petitioner Pro Se.Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of Counsel), for Respondents.PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

Petitioner, an inmate in a correctional facility, commenced this CPLR article 78 proceeding seeking to annul the determination, following a hearing, that he should be placed into involuntary protective custody. The determination was based upon a letter that petitioner wrote criticizing the Muslim religion, which he showed to other inmates and sent to the facility's Imam. Contrary to the contention of petitioner, substantial evidence supports the determination that he should be placed into involuntary protective custody on the ground that he “may be a potential victim” (7 NYCRR 330.2[b]; see Matter of Bartley v. Fischer, 73 A.D.3d 1363, 901 N.Y.S.2d 743). That evidence included petitioner's testimony at the hearing that he wrote the letter, as well as the testimony of an inmate to whom petitioner showed the letter, the correction officer who wrote the recommendation that petitioner be placed into involuntary protective custody, and the Imam ( see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997). Petitioner's denial that he feared for his personal safety and his contention that he did not willingly absent himself from the hearing merely presented a credibility issue that the Hearing Officer was free to resolve against him ( see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 743 N.Y.S.2d 632).

Petitioner further contends that he was denied the right to confront the confidential witnesses against him. He did not raise that contention on his administrative appeal, and thus he failed to exhaust his administrative remedies with respect to that issue ( see Matter of Tifer v. Coughlin, 214 A.D.2d 1036, 627 N.Y.S.2d 188; Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611...