                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517063
________________________________

In the Matter of SALVATORE
   LETIZIA,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

SUPERINTENDENT GRAHAM et al.,
                    Respondents.
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Clark, JJ.

                             __________


     Salvatore Letizia, Sonyea, appellant pro se.

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

                             __________


      Appeal from a judgment of the Supreme Court (O'Connor, J.),
entered April 11, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review, among other things, a determination of
respondent Commissioner of Corrections and Community Supervision
finding petitioner guilty of violating certain prison
disciplinary rules.

      After an incident wherein petitioner repeatedly stabbed
another inmate during an altercation, he was charged in a
misbehavior report with violating the prison disciplinary rules
prohibiting assault, fighting, violent conduct, causing a
disturbance and possessing a weapon. At the tier III
disciplinary hearing, petitioner pleaded guilty to engaging in
violent conduct and fighting, and he was found guilty of the
remaining charges. That determination was affirmed upon
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administrative appeal. Petitioner also filed a request pursuant
to the Freedom of Information Law (see Public Officers Law art 6
[hereinafter FOIL]), but it was partially denied. He commenced
the present CPLR article 78 proceeding to challenge the
determination of guilt and the partial denial of his FOIL
request. Supreme Court dismissed that part of the petition
relating to the prison disciplinary proceeding and, after
reviewing the withheld documents in camera, issued a second
judgment dismissing the petition in its entirety. Petitioner now
appeals from the second judgment, which brings up both for review
(see CPLR 5501 [a] [1]; Matter of Gomez v Fischer, 101 AD3d 1195,
1196 n [2012]).

      We affirm. Dealing first with the prison disciplinary
determination, petitioner did not request that any potential
witnesses be interviewed prior to the hearing. Our review of the
hearing transcript and recording of the hearing itself discloses
that petitioner initially declined to call any witnesses at the
hearing and, while he stated at one point that he may wish to
call unnamed witnesses regarding the motivations of the other
inmate for attacking him, he was advised that said motives were
irrelevant to the charges and later declined the opportunity to
call any witnesses. Under these circumstances, the Hearing
Officer properly rejected petitioner's belated request to call
unidentified witnesses who may have observed the beginning of the
altercation (see Matter of Carota v Goord, 285 AD2d 676, 677
[2001], lv denied 97 NY2d 603 [2001]; Matter of Rodriguez-Aliseo
v Selsky, 268 AD2d 739, 740 [2000]). Petitioner's remaining
claims regarding the hearing, including that other evidentiary
errors were committed during it and that the Hearing Officer was
biased, have been considered and rejected.

      Turning to petitioner's FOIL request, petitioner was
provided all requested records except some relating to the other
inmate involved in the altercation. We agree with Supreme Court,
however, that the disclosure of those records "would constitute
an unwarranted invasion of privacy and could endanger the life or
safety of" others (Matter of Deane v Annucci, 248 AD2d 760, 761
[1998], lv denied 92 NY2d 804 [1998]; see Public Officers Law
§ 87 [2] [b], [f]; Matter of Tate v De Francesco, 217 AD2d 831,
832 [1995], lv denied 86 NY2d 712 [1995]).
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Peters, P.J., Rose, Egan Jr., Lynch and Clark, JJ., concur.



ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
