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Vidal v. Burge

303 A.D.2d 950 Court N.Y. App. Div. Decision date 2003-03-21 English

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p. 950
In the Matter of Joseph Vidal, Petitioner, v John W. Burge, as Superintendent of Auburn Correctional Facility, Respondent.
[759 NYS2d 259]

—CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Cayuga County (Corning, J.), entered October 7, 2002, seeking review of a determination after a Tier II hearing.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner, an inmate at Auburn Correctional Facility, commenced this CPLR article 78 proceeding seeking review of a determination following a Tier II hearing. The misbehavior report and the testimony of its author constitute substantial evidence that petitioner violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing a direct order]), 107.11 (7 NYCRR 270.2 [B] [8] [ii] [harassment]), 112.22 (7 NYCRR 270.2 [B] [13] [iv] [obstruction of visibility into cell or room]) and 118.30 (7 NYCRR 270.2 [B] [19] [viii] [untidy cell or person]). At the hearing, petitioner requested a copy of a complaint he had filed against the author of the misbehavior report and a copy of the policy and procedure memorandum governing cell standards. Petitioner had the right to submit relevant documentary evidence (see 7 NYCRR 254.6 [c]; Matter of Moore v Goord, 255 AD2d 640 , 641 [1998], lv denied 93 NY2d 802 [1999]), and we therefore agree with petitioner that the

p. 951
Hearing Officer erred in denying his requests. The error, however, does not require annulment of the determination. The Hearing Officer credited petitioner’s testimony with respect to the complaint filed against the author of the misbehavior report, and the policy and procedure memorandum is not exculpatory. Thus, in view of the overwhelming evidence of petitioner’s guilt and the absence of prejudice to petitioner, the error in denying his requests for documentary evidence is harmless (see generally Moore, 255 AD2d at 641 ; Matter of Dumpson v Mann, 225 AD2d 809 , 811 [1996], lv denied 88 NY2d 805 [1996]). We have reviewed petitioner’s remaining contentions and conclude that they are lacking in merit. Present — Green, J.P., Pine, Hurlbutt and Lawton, JJ.

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