Opinion
December 31, 1992
Appeal from the Supreme Court, Ulster County.
Petitioner was found guilty of a misbehavior charge involving an assault on a correction officer. Contending that his rights to due process under the law were violated as a result of certain procedural denials and failures, petitioner commenced this CPLR article 78 proceeding to review the administrative determination. Counsel stipulated to a transfer to this Court. Supreme Court accepted the stipulation and ordered the transfer pursuant to CPLR 7804 (g).
Nothing in the record supports petitioner's conclusory allegation that the Hearing Officer was biased (see, Matter of McCoy v Leonardo, 175 A.D.2d 358). Neither does the mere fact that the Hearing Officer had been the officer of the day at the time of the incident in question require disqualification pursuant to regulations of the Department of Correctional Services (see, 7 NYCRR 254.1; Matter of O'Neal v Coughlin, 162 A.D.2d 826, 827). Petitioner's further argument that he was entitled to receipt of a notice of charges in Spanish because of his difficulty in understanding English is belied by the record. Petitioner affirmatively stated that he understood English and the transcript of his hearing reveals that petitioner comprehended the testimony and written evidence.
We also reject petitioner's contention that he was provided inadequate employee assistance. Petitioner must establish that he was prejudiced by the alleged inadequacies (see, Matter of Gonzalez v Mann, 186 A.D.2d 876). Here, petitioner argues that his employee assistant failed to explain the charges to him, interview witnesses or obtain requested documentary evidence. It is clear from the record, however, that petitioner understood the charges and secured favorable testimony from the witnesses he had requested. In addition, the requested medical records and other evidence of the assaulted correction officer's injuries were irrelevant (see, Matter of Irby v Kelly, 161 A.D.2d 860, 861). Finally, the Hearing Officer was free to credit the testimony of two correction officers who were eyewitnesses to the assault over the testimony of inmate eyewitnesses (see, Matter of Mtambuzi v Coughlin, 176 A.D.2d 1110, lv denied 79 N.Y.2d 752, 756), and properly denied testimony from two of petitioner's witnesses as redundant (see, Matter of Santiago v Hoke, 183 A.D.2d 978, lv denied 80 N.Y.2d 757). We have considered petitioner's other contentions and find them to be without merit.
Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.