Lopez v. Fischer

• Decision Date: 01 November 2012
• Parties: In the Matter of Adrian LOPEZ, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1069
952 N.Y.S.2d 694
2012 N.Y. Slip Op. 07243

In the Matter of Adrian LOPEZ, Appellant,
v.
Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

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

Nov. 1, 2012.

[952 N.Y.S.2d 695]

Adrian Lopez, Attica, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: LAHTINEN, J.P., MALONE JR., KAVANAGH, GARRY and EGAN JR., JJ.

[100 A.D.3d 1070]Appeal from a judgment of the Supreme Court (Hayden, J.), entered February 10, 2012 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violent conduct, assault on staff, unhygienic act, interference with an employee and wasting food after he allegedly knocked his food on the floor and dumped his drink on a correction officer who was distributing the lunch tray. Following the hearing,¹ petitioner was found guilty of all charges and the determination was affirmed on administrative appeal. Thereafter, petitioner commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and this appeal ensued.

An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals ( see7 NYCRR 254.5[a]; see generally Matter of Alvarez v. Goord, 30 A.D.3d 118, 813 N.Y.S.2d 564 [2006] ). Here, petitioner maintained that the misbehavior report was written in retaliation for numerous harassment grievances he had recently filed against the correction officer who authored the misbehavior report. The Hearing Officer denied petitioner's request to

[952 N.Y.S.2d 696]

call two witnesses who conducted investigations into those recent complaints, finding that their testimony would be immaterial. At the conclusion of the hearing, however, the Hearing Officer determined that the incident was not the result of retaliation.

Under the circumstances herein, we find that the Hearing Officer improperly denied the requested witnesses. Given the close proximity between the filing of the grievances and issuance of the misbehavior report—the last grievance was filed approximately one week before the misbehavior report...