Opinion
90185
Decided and Entered: June 27, 2002.
Appeal from a judgment of the Supreme Court (Keegan, J.), entered July 23, 2001 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Victor Sowell, Pine City, appellant pro se.
Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Crew III, J.P., Carpinello, Mugglin, Rose and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Following a tier III hearing, petitioner was found guilty of violating numerous prison disciplinary rules including those prohibiting assault on staff, violent conduct, harassment and refusing a direct order, stemming from an altercation that occurred in the prison's visiting room. Petitioner thereafter commenced this CPLR article 78 proceeding alleging, inter alia, that numerous procedural errors deprived him of due process. Following service of an answer by respondent, Supreme Court dismissed the petition on the merits and this appeal ensued.
We affirm. Contrary to petitioner's assertion, the Hearing Officer's decision to remove him from the hearing was not an abuse of discretion (see, 7 NYCRR 254.6 [b]). Petitioner's removal came only after numerous warnings to cease interrupting the hearing and was prompted by his own argumentative and uncooperative behavior (see, Matter of Thomas v. Bennett, 271 A.D.2d 768; Matter of Webb v. Goord, 269 A.D.2d 641). We must also reject the claim that petitioner's assistant was inadequate, as the record indicates that the assistant responded to petitioner's requests and conducted a search uncovering the names of 40 potential witnesses. In any event, petitioner has failed to demonstrate how he was prejudiced by any alleged deficiencies (see, Matter of Sims v. Goord, 274 A.D.2d 701; Matter of Harris v. Goord, 268 A.D.2d 933).
Similarly unavailing is petitioner's assertion that he was denied the right to call certain witnesses, as the record supports the Hearing Officer's determination that the proffered testimony was redundant considering the testimony of the other inmate witnesses (see, Matter of May v. Selsky, 291 A.D.2d 591; Matter of Tebout v. Goord, 290 A.D.2d 833). Moreover, the contention that the Hearing Officer failed to make a meaningful attempt to secure certain other testimony is belied by the record, as these inmate witnesses executed forms detailing the reasons why they refused to testify (see, Matter of Loper v. Goord, 290 A.D.2d 682;Matter of Tusa v. Goord, 287 A.D.2d 907, lv dismissed 98 N.Y.2d 646 [Apr. 25, 2002]). We also find no error in the denial of a civilian witness, another inmate's wife, as the record discloses that she refused to testify in any matter not involving her husband (see, Matter of Hidalgo v. Senkowski, 283 A.D.2d 839; cf., Matter of Moore v. Goord, 281 A.D.2d 736). Petitioner's remaining claims have been reviewed and found to be lacking in merit.
Crew III, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed, without costs.