SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1045
TP 14-00762
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
IN THE MATTER OF TERRENCE JACKSON, PETITIONER,
V MEMORANDUM AND ORDER
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF 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, Wyoming County [Michael M.
Mohun, A.J.], entered April 22, 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. Contrary to
petitioner’s contention, the determination is supported by substantial
evidence, including confidential testimony (see Matter of Stuart v
Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858; see generally
People ex rel. Vega v Smith, 66 NY2d 130, 139). We reject
petitioner’s further contention that the hearing officer was biased or
that the determination flowed from the alleged bias (see Matter of
Colon v Fischer, 83 AD3d 1500, 1501-1502). Petitioner contends that
he was denied his right to call certain witnesses and present certain
documentary evidence in support of his defense of retaliation. We
reject that contention. “The additional testimony [and documentary
evidence] 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 Burr v Fischer, 95 AD3d 1538, 1538-1539, lv
denied 19 NY3d 811). Finally, we reject petitioner’s contention that
this matter was improperly transferred to this Court because
respondent failed to include a record of the administrative appeal
with his answer. That record could not be located and, in view of
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TP 14-00762
respondent’s assertion that he would not make a claim that petitioner
failed to exhaust his administrative remedies, we conclude that
Supreme Court properly determined that there was no “fatal defect” and
transferred the proceeding to this Court (see generally Matter of
Duchmann v Town of Hamburg, 93 AD3d 1289, 1289).
Entered: November 14, 2014 Frances E. Cafarell
Clerk of the Court