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

ABDUL J. MALIK, #79-A-4016,

Petitioner

v

. Index No. 19,035

 

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

by Kim S. Murphy

Assistant Attorney General

Statler Towers, 4th Floor

107 Delaware Avenue

Buffalo, New York 14202



MEMORANDUM AND JUDGMENT

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

answer dated August 15, 2000.

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.

DATED: September 19, 2000

Warsaw, New York



Acting Supreme Court Justice


Memorandum and Judgment

Index No. 19,035