Opinion
December 16, 1993
Appeal from the Supreme Court, Clinton County (Feldstein, J.).
Petitioner was charged with assault in connection with the stabbing of a fellow inmate and, following a hearing, was found guilty. Claiming that his due process and regulatory rights were violated at the hearing, he thereafter commenced the instant proceeding. Supreme Court dismissed the petition and this appeal ensued.
We affirm. Despite his contentions to the contrary, petitioner was advised that confidential testimony was being taken in connection with the hearing and a valid reason was given to him by the Hearing Officer as to why the testimony could not be disclosed. Under prevailing authority this mode of proceeding does not violate petitioner's due process right to know the evidence relied upon by the Hearing Officer in making his determination (see, e.g., Matter of Volgarino v Coughlin, 173 A.D.2d 939; Matter of Pinargote v Berry, 147 A.D.2d 746, 747, lv denied 74 N.Y.2d 606). Further, even assuming, arguendo, that petitioner's comments at the hearing can be characterized as a request to view the photographs used in a photo array presented to the victim, inasmuch as it is clear from the record that the victim's photo array identification was merely confirmatory and that the actual identification was based upon the victim's prior acquaintance with petitioner, the absence of an opportunity to challenge the photo array is harmless and does not affect the determination (see, Matter of Santiago v Hoke, 183 A.D.2d 978, 980-981, lv denied 80 N.Y.2d 757).
Nor are we persuaded that respondents impermissibly denied petitioner his right to call certain witnesses. According to refusal forms executed by petitioner's employee assistant, three inmates were unwilling to testify stating that they knew nothing of the incident and feared reprisal. Inasmuch as the attack occurred in the victim's cell and during a time when the inmates on the cell block were out for recreation, we find that a sufficient basis exists to find that these inmates' reasons for refusal were not specious and that their testimony would be of little or no relevance so as to render the Hearing Officer's summary denial of their testimony permissible (see, 7 NYCRR 254.5; Matter of Barnes v LeFevre, 69 N.Y.2d 649; Matter of Silva v Scully, 138 A.D.2d 717; Matter of Wong v Coughlin, 137 A.D.2d 272; cf., Matter of Codrington v Mann, 174 A.D.2d 868; Matter of Williams v Coughlin, 145 A.D.2d 771). While a fourth inmate refused to testify without reason, we find that the Hearing Officer made the "meaningful effort" required to obtain the requested testimony. He contacted the correctional facility to which the witness subsequently had been moved and requested to speak with him directly in an effort to obtain his testimony, but was advised that he refused to come to the telephone, to give testimony or to explain the reason for his refusal. Under these circumstances, petitioner's right to call this witness cannot be said to have been violated (see, Matter of Maier v Mann, 187 A.D.2d 850).
Crew III, J.P., Cardona, White and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.