Opinion
September 4, 1997
The misbehavior report, together with petitioner's admissions, provide substantial evidence to support the determination finding petitioner guilty of violating the prison disciplinary rules which prohibit participation in a demonstration and refusing a direct order stemming from his refusal to leave his cell during a lock-in and work stoppage ( see, Matter of Henry v. Coombe, 237 A.D.2d 848). Although petitioner testified that he did so because he feared retaliation by other inmates, this merely created a credibility issue for the Hearing officer to resolve ( see, Matter of Grant v. Coombe, 240 A.D.2d 784; Matter of Henry v Coombe, supra). Based upon our review of the record, we find that the Hearing Officer properly denied petitioner's request to call character witnesses ( see, Matter of Gardiner v. Coughlin, 190 A.D.2d 962, lv denied 81 N.Y.2d 710; Matter of Oliver v. Kelly, 126 A.D.2d 947, lv denied 69 N.Y.2d 608). Furthermore, we reject petitioner's assertion that he was denied documentary evidence inasmuch as the tape he requested was no longer in existence ( see generally, Matter of Dawes v. McClellan, 223 A.D.2d 890). Petitioner's remaining contentions have been reviewed and are either not properly before this Court or without merit.
That part of the determination finding petitioner guilty of violating the prison disciplinary rules which prohibit being out of place and violating a movement regulation were reversed on administrative appeal.
Cardona, P.J., Mikoll, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.