Appeal from a judgment of the Supreme Court (O’Shea, J.), entered February 5, 2003 in Chemung County, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review three determinations of the Superintendent of Southport Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
The first incident underlying these prison disciplinary proceedings occurred on January 2, 2002 when petitioner refused to follow direct orders to return a library log acknowledging his receipt of certain law books, thus delaying the correction officer’s rounds. When the same behavior occurred on the following day with the same correction officer, another misbehavior report was issued. The third incident, on February 15, 2002, concerned petitioner’s refusal to exit his cell for a random cell search after being twice ordered to do so by a correction officer.
Three separate tier II disciplinary hearings were held before the same Hearing Officer. For the first two incidents, petitioner was charged with refusing a direct order and interference with an employee. For the third incident, petitioner was charged with refusing a direct order and failing to comply with frisk and search procedures. Petitioner made an unsuccessful written request for employee assistance and sought the production of various documents and the testimony of several witnesses; most of these requests were denied. Moreover, when petitioner continued to raise points on which the Hearing Officer had already ruled, petitioner was removed from each hearing. Petitioner was found guilty of each charge. After these determinations were affirmed on administrative appeal, this CPLR article 78 proceeding was commenced. Upon Supreme Court’s dismissal of the petition, this appeal ensued.
Pursuant to 7 NYCRR 251-4.1, it is within the discretion of the Hearing Officer to grant a request for employee assistance (see 7 NYCRR 251-4.1 [b]). Here, it was properly denied since there were no allegations that petitioner is illiterate, non-English speaking, sensorially disabled, charged with drug use or confined pending a superintendent’s hearing (see 7 NYCRR 251-4.1 [a]). Moreover, upon review, petitioner failed to demonstrate that he suffered prejudice as a result (see Matter of Cliff v De Celle, 260 AD2d 812, 814 [1999], lv denied 93 NY2d 814 [1999]).
As to petitioner’s request for various witnesses, they may be called “provided their testimony is material, is not redundant,
We also reject petitioner’s contentions that the Hearing Officer was biased, had predetermined his guilt, and lied about the nonexistence of certain evidence; petitioner simply failed to sustain his burden of proof on these issues (see Matter of Johnson v Goord, 297 AD2d 881, 883 [2002]; Matter of Nicholas v Schriver, 259 AD2d 863, 863 [1999]). The comments highlighted by petitioner merely reflect the Hearing Officer’s frustration with his continued uncooperativeness (see Matter of Joyce v Goord, supra at 927; see also Matter of Barnhill v Coombe, 239 AD2d 719, 721 [1997]).
Finally, while we recognize that an inmate has a right to be
Mercure, J.P., Spain, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.
