In the Matter of Scott Irwin v. Fischer

• Decision Date: 09 June 2011
• Citation: 85 A.D.3d 1336,2011 N.Y. Slip Op. 04784,925 N.Y.S.2d 256
• Parties: In the Matter of Scott IRWIN, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1336

925 N.Y.S.2d 256

2011 N.Y. Slip Op. 04784

In the Matter of Scott IRWIN, Petitioner,

v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.

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

June 9, 2011.

Donna H. Lee, Main Street Legal Services, Inc., New York City (Beth Rennekamp, Law Intern), for petitioner.Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.GARRY, J.

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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with assault, violent conduct, refusing a direct order, interference with an employee, possession of a weapon and failing to comply with search procedures. The charges stemmed from an incident where petitioner was spotted by a correction officer taking something out of another inmate's cell. The officer directed petitioner to place his hands against the wall in order to conduct a pat frisk when petitioner instead reached into his front pocket. As the officer attempted to grab petitioner's arm, petitioner punched the officer in the head. A scuffle ensued and a sharpened 6 1/2-inch metal object was observed falling out of petitioner's pocket. At a tier III disciplinary hearing, petitioner was found guilty as charged. This determination was upheld on administrative appeal, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, the testimony of its author, the unusual incident report and the use of force report provide substantial evidence to support the finding of guilt on all charges ( see Matter of Amaker v. Selsky, 43 A.D.3d 547, 547, 840 N.Y.S.2d 239 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007]; Matter of Williams v. Goord, 36 A.D.3d 1033, 1033, 826 N.Y.S.2d 522 [2007] ). The confidential testimony of a representative of the mental health unit was submitted for our review ( see Matter of Laureano v. Kuhlmann, 144 A.D.2d 834, 835–836, 534 N.Y.S.2d 572 [1988] ), and we find that the Hearing Officer properly considered petitioner's mental health status based upon this testimony ( see Matter of Bridgeforth v. Fischer, 69 A.D.3d 1068, 1069, 891 N.Y.S.2d 671 [2010] ). We reject petitioner's contention that he was denied due process by the failure of the Hearing Officer to submit the weapon to fingerprint analysis. The absence of petitioner's fingerprints on the weapon would not defeat the inference of possession established by the fact that the weapon was observed falling out of his pocket ( see Matter of Wilcox v. Fischer, 63 A.D.3d 1494, 1495, 881 N.Y.S.2d 555 [2009]; Matter of Vaughn v. Selsky, 276 A.D.2d 958, 958–959, 714 N.Y.S.2d 386 [2000], appeal dismissed 96 N.Y.2d 753, 725 N.Y.S.2d 278, 748 N.E.2d 1074 [2001] ). As information regarding the injuries to the correction officer was contained in other documents in the record, any error by the Hearing Officer in not providing petitioner with a photograph of the injuries was harmless ( see Matter of Rolon v. Goord, 30 A.D.3d 946, 947, 819 N.Y.S.2d 119 [2006]; Matter of Brown v. Goord, 300 A.D.2d 777, 777, 750 N.Y.S.2d 800 [2002] ).

We find the 30–month...