Cortorreal v. Annucci — 123 A.D.3d 1337

Majority

p. 1337

In the Matter of Rafael Cortorreal, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.

[996 NYS2d 924]

Appeal from a judgment of the Supreme Court (Elliot III, J.), entered November 19, 2013 in Albany 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 certain prison disciplinary rules.

p. 1338

Petitioner was charged in a misbehavior report with smuggling and possessing a controlled substance. Following a tier III disciplinary hearing, he was found guilty as charged. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued. Supreme Court dismissed the petition, and petitioner now appeals.

We affirm. We reject petitioner’s contention that he was improperly denied witnesses during his disciplinary hearing. Inasmuch as the requested witnesses had not previously agreed to testify and each signed a witness refusal form indicating the reason for the refusal, petitioner’s right to present witnesses was adequately protected (see Matter of Jamison v Fischer, 119 AD3d 1306 , 1306 [2014]; Matter of Tulloch v Fischer, 90 AD3d 1370 , 1371 [2011]; Matter of Tafari v Fischer, 78 AD3d 1405 , 1406 [2010], lv denied 16 NY3d 704 [2011]). Petitioner’s remaining contentions have been reviewed and are either unpersuasive or have been rendered academic.

Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed, without costs.

Cases cited

Jamison v. Fischer 119 AD3d 1306 N.Y. App. Div. 2014-07-31 at 1306 p. 1338
Tulloch v. Fischer 90 AD3d 1370 N.Y. App. Div. 2011-12-22 at 1371 p. 1338