Watson v. Gardner

• Decision Date: 07 December 2017
• Docket Number: 525054
• Citation: 66 N.Y.S.3d 545,156 A.D.3d 1050
• Parties: In the Matter of George WATSON, Petitioner, v. Gerald GARDNER, as Acting Captain at Shawangunk Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1050

66 N.Y.S.3d 545

In the Matter of George WATSON, Petitioner,

v.Gerald GARDNER, as Acting Captain at Shawangunk Correctional Facility, et al., Respondents.

525054

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

Calendar Date: October 24, 2017

Decided and Entered: December 7, 2017

George Watson, Elmira, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondents.

Before: Peters, P.J., McCarthy, Garry, Devine and Clark, JJ.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner triggered the alarm of the facility Cellsense Scanning Device that detects the presence of metal. Although a strip search revealed no contraband, petitioner again triggered the alarm. Petitioner was then ordered to submit to an X ray to determine whether petitioner had any metal in his body. He refused to submit to the X ray, and he was charged in a misbehavior report with refusing a direct order and failing to comply with frisk and search procedures. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The penalty imposed was subsequently modified and the modified determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner's contention, the misbehavior report and the testimony of the correction officer who authored the report provide substantial evidence supporting the determination of guilt. Although petitioner claims that having an X ray taken infringed upon his practice of the Rastafarian religion, the Rastafarian state chaplain testified that he was not aware of any exclusion of X rays. The testimony of the facility Rastafarian facilitator to the contrary presented a credibility issue for the Hearing Officer to resolve (see Matter of LaMountain v. Fischer, 120 A.D.3d 1508, 1509, 992 N.Y.S.2d 456 [2014]; Matter of Howard v. Fischer, 117 A.D.3d 1253, 1254, 984 N.Y.S.2d 892 [2014], lv denied 24 N.Y.3d 903, 995 N.Y.S.2d 712, 20 N.E.3d 658 [2014] ). In any event, "inmates are not free to disobey the orders of correction personnel, even if such orders appear to be unauthorized or infringe upon the inmate's constitutional rights" ( Matter of Rashid v. Ketchum, 247 A.D.2d 670, 671, 668 N.Y.S.2d 721 [1998] ; see Matter of Allah v. Venettozzi, 144 A.D.3d 1291, 1292, 41 N.Y.S.3d 918 [2016] ), and an "alleged infringement upon an inmate's religious practices does not, by itself, excuse the violation of a prison disciplinary rule" ( Matter of Rivera v. Goord, 2 A.D.3d 922, 922, 767 N.Y.S.2d 701 [2003] ).

Turning to petitioner's procedural contentions, we are unpersuaded that he was improperly denied the right to call a witness. "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" ( Matter of Lopez v. Fischer, 100 A.D.3d 1069, 1070, 952 N.Y.S.2d 694 [2012] [citations omitted]; accord Matter of Reyes v. Keyser, 150 A.D.3d 1502, 1503, 55 N.Y.S.3d 495 [2017] ). Petitioner requested the testimony of Marcia Stewart, who he identified as the "Rasta [c]haplain in Albany," to testify as to his religious basis for refusing an X ray. The record reflects that such testimony would be redundant, given the testimony of the Rastafarian state chaplain and the facility Rastafarian facilitator (see Matter of Osborne v....