        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

138
TP 14-02248
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF JOSE MEDINA, PETITIONER,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


JOSE MEDINA, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Cayuga County [Mark H.
Fandrich, A.J.], entered April 7, 2014) to review a determination of
respondent. The determination found after a tier III hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier III disciplinary
hearing, that he violated various inmate rules, including inmate rule
100.11 (7 NYCRR 270.2 [B] [1] [ii] [assaulting a staff member]) and
113.10 (7 NYCRR 270.2 [B] [14] [i] [possessing a weapon]). Contrary
to petitioner’s contention, the misbehavior report, together with the
Unusual Incident Report, the Use of Force Report, the testimony of
several correction officers who observed the incident, and the
photograph of the ice pick that was recovered, “constitutes
substantial evidence supporting the determination that petitioner
violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer,
82 AD3d 1648, 1648). Petitioner’s denials of the reported misbehavior
raised, at most, an issue of credibility for resolution by the Hearing
Officer (see Matter of Foster v Coughlin, 76 NY2d 964, 966).

     We reject petitioner’s further contentions that the search was
not authorized, and that it was conducted in violation of certain
administrative regulations and without probable cause. To the
contrary, the record establishes that the search was, in fact,
authorized by a correction sergeant, and petitioner has not
demonstrated that he has been prejudiced by any technical defect with
                                 -2-                           138
                                                         TP 14-02248

respect to the manner in which it was conducted (see Matter of Roman v
Selsky, 270 AD2d 519, 519-520; see also Matter of Motzer v Goord, 273
AD2d 559, 559-560). Moreover, the record reflects that the correction
officer who searched petitioner had probable cause for the search,
including his own observations (see Matter of Cole v Goord, 47 AD3d
1147, 1147).

     Contrary to petitioner’s further contention, even assuming,
arguendo, that there was a violation of 7 NYCRR 251-4.2 based on the
allegedly inadequate assistance provided by petitioner’s employee
assistant, we conclude that the Hearing Officer remedied any alleged
defect in that assistance by adjourning the proceeding to permit the
assistant to take the actions petitioner deemed necessary (see
generally Matter of Melendez v Berbary, 89 AD3d 1524, 1525, lv denied
19 NY3d 804; Matter of Gray v Kirkpatrick, 59 AD3d 1092, 1092-1093).
Petitioner failed to preserve for our review his contention that he
was denied the right to call witnesses based on the Hearing Officer’s
refusal to permit him to call a certain inmate witness (see Matter of
Duamutef v Johnson, 266 AD2d 823, 825, lv denied 94 NY2d 759).
Although petitioner preserved that contention for our review with
respect to other witnesses, including other correction officers who
allegedly were at the scene, we conclude that his right to call
witnesses was not violated because “[t]he additional testimony
requested by petitioner would have been either redundant or
immaterial” (Matter of Sanchez v Irvin, 186 AD2d 996, 996, lv denied
81 NY2d 702; see Matter of Jackson v Annucci, 122 AD3d 1288, 1288-
1289). The record does not support petitioner’s further contention
that the Hearing Officer “was biased or that the determination flowed
from the alleged bias” (Matter of Rodriguez v Herbert, 270 AD2d 889,
890; see Matter of Colon v Fischer, 83 AD3d 1500, 1501-1502).

     We have considered petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
