Opinion
September 29, 1995
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Green, J.P., Pine, Wesley, Callahan and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner, an inmate at Oneida Correctional Facility, was found guilty after a superintendent's hearing of violating prison disciplinary rules that prohibit solicitation of services ( 7 NYCRR 270.2 [B] [4] [ii]) and require inmates to comply with the facility correspondence rules ( 7 NYCRR 270.2 [B] [26] [ii]). The determination was affirmed on petitioner's administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination on numerous substantive and procedural grounds.
The determination is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 N.Y.2d 130, 139-140). Petitioner's defense of justification raised an issue of credibility and the Hearing Officer was entitled to reject petitioner's testimony and to credit the statements made in the misbehavior report and the testimony of certain witnesses (see, Matter of Rodriguez v Coughlin, 216 A.D.2d 966).
The gap in the tape transcript that occurred on the first day of the hearing was not "so significant as to preclude meaningful review of the proceeding, particularly as [it] relates to petitioner's [legal] arguments" (Matter of Fletcher v Selsky, 199 A.D.2d 865, 866, lv denied 83 N.Y.2d 753). Moreover, the gap did not include the testimony of any witness.
There is no merit to the contention of petitioner that the rules violations alleged in the misbehavior report subjected him "to a form of double jeopardy". The earlier misbehavior report to which petitioner refers charged him with the discrete violation of providing unauthorized legal assistance to another inmate.
Petitioner received meaningful assistance from the employee assistant (see, 7 NYCRR 251-4.2; Matter of Chisholm v Irvin, 209 A.D.2d 1027; Matter of Palin v Coughlin, 209 A.D.2d 971), and the record is devoid of evidence that the Hearing Officer "was biased or that the outcome of the hearing flowed from such bias" (Matter of Parker v Coughlin, 211 A.D.2d 929; see, Matter of Martinez v Scully, 194 A.D.2d 679). Additionally, petitioner's conditional right to call witnesses (see, Wolff v McDonnell, 418 U.S. 539, 566; see also, 7 NYCRR 254.5 [a]) was not violated by the refusal of the Hearing Officer to call certain persons as witnesses. The Hearing Officer properly determined that the testimony of those persons would have been either immaterial or redundant (see, Matter of Fletcher v Selsky, supra, at 866; Matter of Nieves v Coughlin, 157 A.D.2d 943, 944).
Lastly, we have reviewed the remaining contentions of petitioner and conclude that they are lacking in merit.