Opinion
April 15, 1994
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P.J., Fallon, Wesley, Davis and Boehm, JJ.
Determination unanimously confirmed and petition dismissed. Memorandum: The determination made at petitioner's Tier III disciplinary hearing that petitioner violated inmate rule 108.14 ( 7 NYCRR 270.2 [B] [9] [v]) is supported by substantial evidence (see, Matter of Foster v Coughlin, 76 N.Y.2d 964). Moreover, we conclude that petitioner was not deprived of his right to call witnesses; the Hearing Officer made a meaningful effort to locate and produce those witnesses (see, Matter of Salcedo v Coughlin, 197 A.D.2d 729). Finally, we reject the contention that petitioner was deprived of due process because he did not receive the employee assistant of his choice. Petitioner signed a waiver form indicating that he did not want employee assistance at his disciplinary hearing, thus expressly making a knowing and voluntary waiver of his right to assistance. Notwithstanding such waiver, an employee assistant was appointed at petitioner's subsequent request and petitioner has failed to show prejudice resulting from the employee assistant's performance (see, Matter of Jenkins v Coughlin, 190 A.D.2d 937, lv denied 82 N.Y.2d 651).