                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   521225
________________________________

In the Matter of STEVEN SILEO,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Appellant.
________________________________


Calendar Date:   September 22, 2015

Before:   McCarthy, J.P., Garry, Rose and Lynch, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for appellant.

                             __________


      Appeal from a judgment of the Supreme Court (McNally Jr.,
J.), entered July 17, 2014 in Albany County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78, to annul a determination of respondent findng
petitioner guilty of violating certain prison disciplinary rules.

      During a search of petitioner's cell, a correction officer
found a piece of mirror and a pen shaft that had been fashioned
into makeshift weapons, as well as a television set inscribed
with another inmate's identification number. As a result,
petitioner was charged in a misbehavior report with possessing a
weapon and possessing contraband. During the tier III
disciplinary hearing that followed, petitioner requested the
inmate who allegedly reported that the television set had been
stolen from him to testify at the hearing. The Hearing Officer
denied the inmate's testimony. At the conclusion of the hearing,
petitioner was found guilty of the charges and the determination
                              -2-                521225

was later affirmed on administrative appeal. Petitioner then
commenced this CPLR article 78 proceeding challenging the
determination on the ground that, among others, the Hearing
Officer improperly denied him the right to call the inmate as a
witness. Following service of respondent's answer, Supreme Court
concluded that petitioner's constitutional right to call
witnesses had, in fact, been violated. Accordingly, the court
granted the petition, annulled the entire determination and
directed that all references to it be expunged from petitioner's
institutional record. Respondent now appeals.

      Initially, the testimony of the inmate who was denied as a
witness related solely to the contraband charge, which was based
upon petitioner's possession of the television set and had
nothing to do with his possession of the two weapons. Thus, even
if petitioner was improperly denied a witness, that portion of
the determination finding him guilty of possessing a weapon
should not have been annulled on this basis. Moreover, although
the witness denial impacted only the contraband charge, the
record reveals that the inmate's testimony was neither material
nor relevant because petitioner's guilt was not dependent upon
that inmate's ownership of the television set (see Matter of
Thompson v Fischer, 89 AD3d 1353, 1354 [2011], lv denied 18 NY3d
809 [2012]; see also Matter of Covington v Smith, 75 AD3d 708,
708 [2010]). Rather, the rule at issue states, in relevant part,
that "an inmate shall not possess any item unless it has been
specifically authorized by the superintendent or designee, the
rules of the department or the local rules of the facility" (7
NYCRR 270.2 [B] [14] [xiii]). Here, the evidence in the record
establishes that petitioner possessed a television set that he
was not authorized to have (see Matter of Meyers v Fischer, 85
AD3d 1480, 1481 [2011]). In view of this, we find that there was
no violation of petitioner's regulatory or constitutional right
to call witnesses. Therefore, Supreme Court's judgment must be
reversed and the determination upheld.

     McCarthy, J.P., Garry, Rose and Lynch, JJ., concur.
                              -3-                  521225

      ORDERED that the judgment is reversed, on the law, without
costs, determination confirmed and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
