Opinion
July 11, 1985
Appeal from the Supreme Court, Clinton County.
Petitioner, an inmate at Clinton Correctional Facility, was charged in a misbehavior report with striking another inmate, one Favors, with a sock filled with rocks. In his report, Correction Officer John Gillen stated that upon observing the altercation, he ordered petitioner to "stop and stand still at which point [petitioner] started to run". At the ensuing Superintendent's proceeding, petitioner denied any involvement in the incident and explained that Gillen was chasing an unidentified inmate through the crowded prison yard when he mistakenly "picked out" petitioner as the assailant. Two inmate witnesses corroborated petitioner's assertions, but neither actually witnessed the assault. Gillen, however, testified that he had "no doubt" as to petitioner's identity. Based on Gillen's written report and testimony, the hearing officer found petitioner guilty on all charges. Such finding was affirmed on administrative appeal and petitioner commenced this CPLR article 78 proceeding to challenge the determination.
Initially, petitioner maintains that he was denied the right to call two inmate witnesses, J. Johnson and C. Bray, whom he ostensibly requested an opportunity to produce ( see, 7 NYCRR 254.5) . A review of the record, however, confirms that no such request was made, either prior to or during the hearing. The only two witnesses that petitioner requested to have testify on his behalf did so testify. In any event, having failed to raise this issue at the hearing, petitioner may not now be heard to complain ( see, Matter of Geddes v. Wilmot, 111 A.D.2d 474; Matter of Guzman v. Coughlin, 90 A.D.2d 666).
Nor is there any support in the record for petitioner's assertion that Favors testified outside petitioner's presence in violation of his right to due process ( see, Matter of Garcia v LeFevre, 64 N.Y.2d 1001; Matter of Burke v. Coughlin, 97 A.D.2d 862, 863). In fact, there is nothing in the record to indicate that Favors, who was hospitalized with a fractured cheekbone, gave any testimony whatsoever during this proceeding.
Petitioner's contention that he was denied adequate employee assistance is also without substance. The record shows that Correction Officer G. Rodriguez was appointed at petitioner's request and that no objections were voiced as to the assistance rendered. This being the case, petitioner waived any objections to the quality of assistance received ( see, Matter of Felder v. Jones, 111 A.D.2d 472; Matter of Newman v. Coughlin, 110 A.D.2d 981).
Finally, the misbehavior report and oral testimony of Gillen provided substantial evidence to support the determination that petitioner had violated the disciplinary rules in question ( see, Matter of Burgos v. Coughlin, 108 A.D.2d 194). That Gillen's testimony conflicted with that of petitioner and his witnesses merely presented a credibility issue for resolution by the hearing officer ( supra; see, Matter of Gonzales v. LeFevre, 105 A.D.2d 909; Matter of Witherspoon v. LeFevre, 82 A.D.2d 959, 960, appeal dismissed 54 N.Y.2d 829).
Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Kane, Main, Casey and Weiss, JJ., concur.