Reynoso v. Bartlett

Cardona, P. J. Appeal from a judgment of the Supreme Court (Ellison, J.), entered August 22, 1995 in Chemung County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner, while an inmate at Elmira Correctional Facility in Chemung County, was found guilty of violating a prison disciplinary rule prohibiting lewd exposure as a result of an incident whereby he exposed himself to a female doctor who had been walking by his cell.^[1] The finding of guilt was affirmed upon administrative appeal and petitioner then commenced this CPLR article 78 proceeding to challenge the determination. Supreme Court dismissed the petition on the merits and this appeal ensued.

On appeal, petitioner raises numerous allegations of error and prejudice that have been examined and found to be without merit. Contrary to petitioner’s arguments, we find that the Hearing Officer properly limited the issues at the hearing to the charges in the misbehavior report rather than allowing petitioner to introduce a separate grievance he had filed against the author of the misbehavior report following its issuance. Petitioner also complains because two of the four inmates that he requested appear as witnesses did not testify at the hearing. Notably, petitioner has failed to demonstrate that the two witnesses had any relevant or noncumulative testimony to offer (see, Matter of Grassia v Mann, 223 AD2d 811 , 812). In any event, the record reveals that one of these witnesses was not produced because he had been recently stabbed and was in protective custody, and the other inmate witness signed a form refusing to testify, all without an objection from petitioner (see, Matter of Kelly v Coughlin, 192 AD2d 897 , appeal dismissed, v denied 82 NY2d 819 ).