Kelly v. Selsky

Sep 18, 2008
Versions:54 A.D.3d 1118
864 N.Y.S.2d 576

[864 NYS2d 576]—Appeal from a judgment of the Supreme Court (Zwack, J.), entered December 21, 2007 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with providing unauthorized legal assistance, disobeying a direct order and possessing property in an unauthorized area. Petitioner pleaded guilty with an explanation to providing unauthorized legal assistance and was found guilty following a tier III disciplinary hearing of disobeying a direct order. He was found not guilty of possessing property in an unauthorized area. The determination was administratively affirmed and this CPLR article 78 proceeding ensued. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Regarding petitioner‘s claim that he was denied adequate employee assistance, he has failed to demonstrate, nor does the record reveal, any prejudice suffered by him as a result of any alleged deficiencies (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). As for petitioner‘s assertion that he was denied the right to present witness testimony, he expressly advised the Hearing Officer that he did not want to call any witnesses (see Matter of Griffin v Goord, 43 AD3d 591, 592 [2007]). Petitioner‘s remaining contentions have been examined and, to the extent that they are properly before this Court, are unavailing.

Peters, J.P, Rose, Lahtinen, Kavanagh and Stein, JJ., concur.

Ordered that the judgment is affirmed, without costs.