Santiago v. Selsky

Nov 21, 2001
Versions:288 A.D.2d 732
732 N.Y.S.2d 740
2001 N.Y. App. Div. LEXIS 11133

—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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Contrary to petitioner’s contention, substantial evidence supports the determination finding him guilty of violating the prison disciplinary rule that prohibits harassing a facility employee (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). According to the misbehavior report and testimony of the correction officer involved in the incident, petitioner approached the female correction officer and told her that he has had feelings of a personal nature toward her for several years. To the extent that petitioner denied the incident, this created a credibility issue which the Hearing Officer was free to resolve against petitioner (see, Matter of Nieves v Selsky, 263 AD2d 795). Although the correction officer did not issue the misbehavior report until two days after the incident, she explained that she was waiting to discuss the matter with her supervisor.

We also reject petitioner’s assertion that he was improperly denied employee assistance. Petitioner was not entitled to employee assistance inasmuch as he was not illiterate, non-English speaking, sensorially disabled or confined pending the hearing (see, 7 NYCRR 251-4.1 [a]; Matter of Covington v Coombe, 255 AD2d 838). Furthermore, we find no abuse of discretion in the Hearing Officer denying petitioner’s request for employee assistance (see, 7 NYCRR 251-4.1 [b]).

Cardona, P. J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.