Opinion
December 31, 1991
Appeal from the Supreme Court, Clinton County (Lewis, J.).
We reject petitioner's claim that he had a right to be present during the testimony of the prison facility's Muslim Imam as to whether the pin petitioner wore was a Muslim insignia. The right to be present applies only when an inmate calls a witness ( 7 NYCRR 253.5 [b]; 254.5 [b]) and not, as was the case here, where the witness is called by the Hearing Officer (see, Matter of Honoret v Coughlin, 160 A.D.2d 1093, lv denied 76 N.Y.2d 710). In any case, an inmate's presence for the testimony of witnesses is not constitutionally required (see, supra) and we note that while petitioner raised this issue on administrative appeal (cf., Matter of Crowley v O'Keefe, 148 A.D.2d 816, appeal dismissed 74 N.Y.2d 780, lv denied 74 N.Y.2d 613), he made no objection to the testimony at the time of the hearing (see, Matter of Finn v Leonardo, 160 A.D.2d 1074). Likewise, we find no merit to petitioner's contention that the Imam's testimony should have been recorded ( 7 NYCRR 253.6 [b]; 254.6 [b]). Insofar as there is no dispute as to the content of the testimony (petitioner agreed that the Imam did not recognize the pin), the issue is academic and the failure to record the testimony cannot be said to constitute reversible error (see, Matter of Berrios v Kuhlmann, 143 A.D.2d 475). Petitioner's remaining contentions have been considered and rejected as being without merit.
Mahoney, P.J., Weiss, Levine, Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.