Mabry v. Coughlin

Sep 23, 1993
Versions:196 A.D.2d 931
601 N.Y.S.2d 975
1993 N.Y. App. Div. LEXIS 8662

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty after a Superintendent’s hearing of violating rules prohibiting assault on staff and refusal of a direct order. After affirmance on administrative appeal, petitioner commenced this proceeding contending that the determination is not supported by substantial evidence and that other errors require annulment.

The misbehavior report written by Correction Officer William Bishop stated that petitioner refused to step back into his cell as ordered and assaulted Bishop. This report and the confirmatory testimony of Bishop and other correction officers provided substantial evidence supporting the charges (see, Matter of Bernacet v Coughlin, 145 AD2d 802, Lv denied 74 NY2d 603). Further, petitioner’s claim that he was denied employee assistance is meritless. Assuming, arguendo, that petitioner’s failure to choose an assistant when given the opportunity to do so did not serve to waive his right to an assistant, the record does not indicate that petitioner was prejudiced thereby (see, Matter of Irby v Kelly, 161 AD2d 860). Nor do we find any error in the Hearing Officer’s denial of petitioner’s requests to produce documentary evidence and to call witnesses that were irrelevant or redundant (see, Matter of Gonzalez v Mann, 186 AD2d 876; Matter of Warren v Irvin, 184 AD2d 1059; Matter of Nieves v Coughlin, 157 AD2d 943). Finally, the record reveals no evidence of bias on the part of the Hearing Officer affecting the outcome of the hearing (see, Matter of Nieves v Coughlin, supra). We have considered petitioner’s other contentions and find them to be without merit.

Mikoll, J. P., Mercure, Cardona, Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.