Opinion
92830.
Decided and Entered: January 29, 2004.
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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Manfred Bernier, Pine City, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondent.
Before: Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit fighting, violent conduct and interference with an employee. The misbehavior report relates that while an inmate was being escorted to the common area, petitioner suddenly kicked the inmate in the chest. As a result of the incident, the day surgery program was delayed approximately 10 minutes. The Hearing Officer did not credit petitioner's assertion that he only engaged in a playful gesture, especially in light of the testimony of the inmate involved. We find that the misbehavior report, written by the correction officer who witnessed the event, together with the use-of-force memorandum and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Winbush v. Ricks, 306 A.D.2d 601).
Turning to petitioner's procedural claims, we note that his allegation that he was not provided with various documents was refuted by testimony from the employee assistant who stated that, although petitioner refused to sign for the receipt form, he was nevertheless provided with the requested material. In view of the foregoing, and given petitioner's failure to demonstrate any prejudice from any alleged deficiencies, we are unpersuaded by petitioner's assertion of inadequate employee assistance (see Matter of Garcia v. Selsky, 237 A.D.2d 826). Furthermore, we find that the hearing was timely completed and petitioner was informed of the reason the hearing extension (see 7 NYCRR 251-5.1 [b]). In any event, petitioner alleges no prejudice resulting from the delay (see Matter of Matos v. Goord, 293 A.D.2d 855). Petitioner's remaining contentions have been reviewed and found to be without merit.
Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.