Opinion
April 29, 1993
Appeal from the Supreme Court, Albany County.
Petitioner was found guilty after a Superintendent's hearing of violating a prison disciplinary rule prohibiting conspiring to escape. Initially, we find that petitioner waived any argument that the Hearing Officer was biased because he had previously interviewed him in an administrative segregation proceeding by failing to object on that ground during the hearing (see, Matter of Blackshear v Coughlin, 185 A.D.2d 493; Matter of McClean v LeFevre, 142 A.D.2d 911). In any event, the Hearing Officer's interview of petitioner in that proceeding did not constitute an investigation of the incident at issue so as to preclude him from presiding at petitioner's Superintendent's hearing (see, 7 NYCRR 254.1; Matter of Blackshear v Coughlin, supra; Matter of O'Neal v Coughlin, 162 A.D.2d 826).
We also reject petitioner's contention that he was denied access to an unusual incident report. Petitioner has produced no evidence beyond his own speculation to refute testimony at the hearing that no written report of the incident existed. Further, review of the Hearing Officer's confidential interview with the investigating officer demonstrates that the Hearing Officer was provided with information that was sufficiently detailed and specific so that he could independently assess the informant's reliability (see, Matter of Hodges v Coughlin, 180 A.D.2d 942; Matter of Kalonji v Coughlin, 157 A.D.2d 941) and reveals a rational basis for his determination that the informant, as well as the alleged coconspirators, could not be called as witnesses for security reasons (see, Matter of Machado v Leonardo, 180 A.D.2d 936). The same interview establishes that the denial of petitioner's request to review physical evidence and the photographic array viewed by the informant was also rationally based upon security reasons (cf., Matter of Rosario v Selsky, 169 A.D.2d 955).
Finally, we find no prejudicial error in the failure of the Hearing Officer to disclose to petitioner the existence of two photographs of a confiscated cloth that were relayed to the Hearing Officer by correctional authorities. Nothing in the record indicates that the photographs were relied upon in making the determination (see, Matter of Williams v Coughlin, 190 A.D.2d 883; Matter of Burnell v Coughlin, 177 A.D.2d 1061; Matter of Rodriguez v Coughlin, 167 A.D.2d 671) and it has not been demonstrated that they would have had a significant bearing on petitioner's defense (cf., Matter of Taylor v Coughlin, 190 A.D.2d 900). We have considered petitioner's remaining contentions and find them to be without merit.
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.