Matter of Baxton v. Annucci ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 22, 2016 522377
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In the Matter of JAMES BAXTON,
Petitioner,
v MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: August 8, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Rose and Mulvey, JJ.
__________
James Baxton, Alden, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
__________
Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of respondent finding petitioner guilty of
violating a prison disciplinary rule.
After petitioner's urine twice tested positive for
marihuana, he was charged in a misbehavior report with use of a
controlled substance. He was found guilty following a tier III
disciplinary hearing and, as a penalty, the Hearing Officer
restored a previously suspended 134-day sentence to the special
housing unit. That determination was affirmed on administrative
appeal with a modified reduction of the penalty by 30 days, and
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this CPLR article 78 proceeding ensued.1
We confirm. Initially, we reject petitioner's contention
that he was denied the opportunity to contact his attorney for
assistance in preparing his defense. Inmates "do not 'have a
right to either retained or assigned counsel in disciplinary
hearings'" (Matter of Jeckel v New York State Dept. of Corr., 111
AD3d 1180, 1180 [2013], quoting Wolff v McDonnell, 418 US 539,
564 [1974]). Inmates are, however, "entitled to a reasonable
opportunity to seek and receive the assistance of attorneys"
(Matter of Jeckel v New York State Dept. of Corr., 111 AD3d at
1180 [internal quotation marks and citations omitted]). The
record reflects that the Hearing Officer adjourned the hearing
twice, for a total of three weeks, in order to provide petitioner
with the opportunity to speak to counsel, and petitioner failed
to do so. Under these circumstances, petitioner was provided a
reasonable opportunity to seek the assistance of counsel.
We reject petitioner's contention that he was impermissibly
denied his right to call as witnesses both an employee of the
manufacturer of the urinalysis equipment and a certain inmate.
The manufacturer informed the Hearing Officer that it would not
provide an employee representative to testify at petitioner's
hearing (see Matter of Belle v Prack, 140 AD3d 1509, 1510 [2016];
Matter of Smith v Prack, 138 AD3d 1286, 1287 [2016]). As to the
inmate witness, petitioner requested this testimony to recount an
incident that supports his contention that he was exposed to
second-hand marihuana smoke. Inasmuch as another inmate witness
testified regarding this incident, the requested testimony would
have been redundant (see Matter of Cobb v Yelich, 118 AD3d 1235,
1236 [2014]; Matter of Burr v Fischer, 95 AD3d 1538, 1538-1539
[2012], lv denied 19 NY3d 811 [2012]). Finally, we are not
persuaded that the penalty imposed was improper.
1
While the petition only raises procedural issues and
should not have been transferred to this Court, we will retain
jurisdiction in the interest of judicial economy (see Matter of
Hernandez v Fischer, 111 AD3d 1042, 1043 n [2013]).
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McCarthy, J.P., Egan Jr., Lynch, Rose and Mulvey, JJ.,
concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court