Opinion
Decided and Entered: June 28, 2001.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Bartram Y. Dabney, Attica, petitioner in person.
Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.
Before: Cardona, P.J., Spain, Carpinello, Mugglin and Rose, JJ.
MEMORANDUM AND JUDGMENT
The detailed misbehavior reports authored by correction officers who observed the incidents and the testimony of a correction officer who was present during both of the incidents provide substantial evidence to support the determination finding petitioner guilty of violating certain prison disciplinary rules as a result of two separate incidents which occurred on July 2, 1999 (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964). Petitioner's claims of retaliation presented a question of credibility for the Hearing Officer to resolve (see, Matter of Daum v. Goord, 270 A.D.2d 745). By refusing to select an available employee assistant when he was advised that the employee he originally selected was unavailable, petitioner waived his claim that he was denied the right to select an employee assistant (see, Matter of Odom v. Goord, 257 A.D.2d 868). Similarly, by voluntarily leaving the hearing before his requests to view a videotape and have certain witnesses testify could be accommodated, petitioner waived his procedural claims regarding those matters (see, Matter of Cunningham v. Goord, 274 A.D.2d 814). Petitioner's remaining claim of Hearing Officer bias is unsupported by the record.
Cardona, P.J., Spain, Mugglin and Rose, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.