State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 22, 2016 522377 

________________________________

In the Matter of JAMES BAXTON,

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

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
-2- 522377 

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]).
-3- 522377 

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