Opinion
April 17, 1995
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
On July 26, 1993, a misbehavior report was filed charging the petitioner, an inmate at the Fishkill Correctional Facility, with a violation of a disciplinary rule proscribing the possession of contraband. After a Tier II disciplinary hearing at which only the petitioner and another inmate testified, the Hearing Officer found the petitioner guilty of possessing contraband.
It is well settled that "[a] written misbehavior report can constitute substantial evidence of an inmate's misconduct" (Matter of Foster v Coughlin, 76 N.Y.2d 964, 966; Matter of Perez v Wilmot, 67 N.Y.2d 615, 616). In this case, the misbehavior report, which was written and signed on the same day as the incident by the correction officer who witnessed it, was sufficiently detailed, relevant and probative to constitute substantial evidence supporting the Hearing Officer's finding of guilt (see, People ex rel. Vega v Smith, 66 N.Y.2d 130, 140; Matter of Price v Coughlin, 195 A.D.2d 995; Matter of Rogers v Mitchell, 194 A.D.2d 1059). Moreover, the Hearing Officer, who heard the testimony of the petitioner and the other inmate, could properly disbelieve their testimony and credit the statements contained in the misbehavior report (see, Matter of Oro v Keane, 211 A.D.2d 796; Matter of Patterson v Senkowski, 204 A.D.2d 831; Matter of Vega v Coughlin, 202 A.D.2d 597).
The petitioner contends that the Hearing Officer erred by failing to call the correction officer who authored the misbehavior report as a witness. However, the record shows that shortly after the Hearing Officer announced his decision to adjourn the hearing so that the correction officer could be produced as a witness, the petitioner stated that he no longer wanted the officer to testify. Thus, the petitioner has waived this claim (see, Matter of Reynoso v LeFevre, 199 A.D.2d 886; Matter of Nina v Coughlin, 191 A.D.2d 942). In any event, it is well settled that a "Hearing Officer is under no obligation to call the reporting officer as a witness * * * nor is the Hearing Officer required to make petitioner's case for him" (Matter of Hardwick v Coughlin, 187 A.D.2d 1034; see also, Matter of Feliciano v Coughlin, 206 A.D.2d 571). Mangano, P.J., Bracken, Balletta and O'Brien, JJ., concur.