At a term of Supreme Court held in and
for the County of Wyoming, at Attica, New York, on the 23rd day of August, 2000.
PRESENT: HONORABLE MARK H. DADD
Acting Supreme Court Justice
STATE OF NEW YORK
SUPREME COURT : COUNTY OF WYOMING
_____________________________________________
In the Matter of the Application of
Petitioner
v
GLENN S. GOORD, Commissioner,
Department of Correctional Services, Respondent
FOR RELIEF PURSUANT TO ARTICLE 78 CPLR
_____________________________________________
For the Petitioner
WYOMING COUNTY-ATTICA LEGAL
AID BUREAU, INC.
Norman P. Effman, Director
14 Main Street
Attica, New York 14011
For the Respondent
ELIOT SPITZER, Attorney General
Assistant Attorney General
Statler Towers, 4th Floor
107 Delaware Avenue
Buffalo, New York 14202
By petition pursuant to Article 78 of the CPLR dated April 16, 2000, Abdul J. Malik seeks review of superintendent's hearings completed on January 20, and 21, 2000. Petitioner appeared by counsel assigned by an order to show cause dated May 10, 2000 and contended that the hearings should be annulled. Respondent requests that the petition be denied upon the
Petitioner admitted spitting in the faces of two officers and on a cart loaded with food by pleading guilty to the misbehavior report filed by Correction Officer Zywicki. He did not have a right to demand that his assistant interview prison employees prior to the hearing (see Matter of Joyce v. Coombe, Supreme Court of Wyoming County, Index No. 17,314, Memorandum and Judgment dated March 27, 1995, annexed; Matter of Tinsley v. Coughlin, Supreme Court of Wyoming County, Index No. 16,595, Memorandum and Judgment dated February 27, 1992, annexed, affirmed 192 A.D.2d 1142). Thus, he did not have a right to call witnesses solely to rebut his assistant's claim that he was never asked to contact potential employee witnesses (see Exhibit E, pp. 5-6).
Petitioner's only explanation to the charges was a vague claim that he had been driven "into insanity" (see Exhibit E, pp. 9-12). The hearing officer did interview Mr. DeSantis, a psychologist, and two inmates at the petitioner's request. The inmates testified to mistreatment the petitioner had allegedly suffered from officers. There was no indication that any of the other requested witnesses were involved in the alleged incidents of misbehavior. Thus, the record shows that the hearing officer gave the petitioner a meaningful opportunity to present proof of mitigating circumstances in this matter and did not abuse his discretion in denying additional witnesses as irrelevant or redundant (see Matter of Lopez v. Coughlin, 195 A.D.2d 1078 [1993]; Matter of Amaker v. Coughlin, 197 A.D.2d 886 [1993]; Matter of White v. Scully , 156 A.D.2d 942 [1989]). Petitioner is not entitled to relief merely because the hearing officer found his explanation of his conduct to be insufficient (see Exhibit E, pp. 35-36; see also Matter of Zaro v. Coughlin, 195 A.D.2d 1003 [1993]; Matter of Sutherland v. Coughlin, 211 A.D.2d 955 [1995]).
It further appears that some of the requested witnesses were actually involved in a prior incident documented in the separate report filed by Correction Officer Matrontonio. Petitioner was also charged with spitting at this correction officer. The testimony of the employee witnesses in this second hearing did not support the petitioner's claims on either report. Furthermore, petitioner left the hearing room and willfully refused to attend the proceedings conducted on Officer Matrontonio's report (see Exhibit P, p. 6; see also Matter of Payne v. Smith, 97 A.D.2d 960 [1983]; Matter of Watson v. Coughlin, 72 N.Y.2d 965 [1988]).
NOW, THEREFORE, it is hereby
ORDERED that the petition is denied.
Warsaw, New York
Acting Supreme Court Justice
Memorandum and Judgment