Opinion
July 28, 1988
Appeal from the Supreme Court, Clinton County (Plumadore, J.).
On October 20, 1986, petitioner, an inmate at Clinton Correctional Facility in Clinton County, was charged with violating facility rule 100.10 by stabbing another inmate. Following a Tier III hearing, petitioner was found guilty of the charge and punishment was imposed. Respondent Commissioner of Correctional Services affirmed the disposition following administrative review and petitioner commenced this CPLR article 78 proceeding to annul the determination. Supreme Court granted judgment in favor of respondents dismissing the petition and this appeal followed.
We affirm. It is petitioner's chief contention that his right to call witnesses at the hearing was impermissibly denied. Specifically, petitioner sought to have three inmates testify on his behalf, purportedly to establish that he did not commit the stabbing, but was advised by the Hearing Officer that they were unwilling to testify. Petitioner contends that the Hearing Officer was required, at the very least, to inquire as to the cause for the witnesses' unwillingness to testify and state the reasons on the record (see, 7 NYCRR 254.5; Matter of Barnes v LeFevre, 69 N.Y.2d 649, 650; cf., Matter of Law v. Racette, 120 A.D.2d 846, 848). We disagree. Petitioner did not request that the inmates be questioned or that the reason for their unwillingness be ascertained; to the contrary, petitioner indicated that he was already aware of the witnesses' reluctance to testify and the reason therefor. Further, he freely acquiesced in their refusal and indicated his willingness to proceed with the testimony of two other inmate witnesses.
Petitioner waived the objection by failing to insist that the inmate witnesses be produced or to request that inquiry be made as to why they were not willing to testify at a time when the alleged error could have been corrected (see, Matter of Hop-Wah v. Coughlin, 118 A.D.2d 275, 278, revd on other grounds 69 N.Y.2d 791) and, further, by failing to raise the issue on administrative appeal (see, Matter of Shahid v. Coughlin, 83 A.D.2d 8, 10-11, affd 56 N.Y.2d 987; Matter of Malik v. Coughlin, 133 Misc.2d 245, 246-247). The case of Matter of Moore v Coughlin ( 112 A.D.2d 608), relied upon by petitioner, is inapposite as there the Hearing Officer refused to produce the requested witness (supra, at 609). Here, the witnesses refused to testify despite the fact that the Hearing Officer was otherwise willing to produce them. Further, since the avowed purpose for taking the testimony of all of the inmate witnesses was to establish that petitioner did not commit the stabbing and indeed was not present when it occurred, the testimony of the subject inmates would have been redundant (see, 7 NYCRR 254.5 [a]).
Next, we reject petitioner's claim that the identity of the confidential informant should have been divulged and the witness required to testify in petitioner's presence. We have frequently upheld the use of statements of confidential informants in inmate misbehavior proceedings, so long as petitioner is advised that the statement of an informant is being taken and considered and it is shown that the safety of the informant would be threatened by disclosure of his identity (see, Matter of Gibson v. LeFevre, 133 A.D.2d 978, 979-980; Matter of Harris v. Coughlin, 116 A.D.2d 896; Matter of Burgos v. Coughlin, 108 A.D.2d 194, lv denied 66 N.Y.2d 603). Here, the Hearing Officer personally interviewed the informant, and the testimony submitted for our in camera inspection amply establishes petitioner's guilt and the need to protect the identity of the informant (see, Matter of Hickman v. Coughlin, 115 A.D.2d 105, 106).
Petitioner's remaining contentions are either not preserved for our review or are found to be meritless.
Judgment affirmed, without costs. Kane, J.P., Mikoll, Levine, Harvey and Mercure, JJ., concur.