Opinion
May 9, 1985
Appeal from the Supreme Court, Albany County.
Petitioner, an inmate at Elmira Correctional Facility, was charged with assault based on an incident wherein he was alleged to have attacked a correction officer. The only evidence offered in support of the charge was the misbehavior report written by the officer who had allegedly been assaulted. The report was indorsed by two other officers who witnessed the incident. Petitioner testified in his own behalf, but did not call any witnesses. Petitioner was found guilty, and such finding was affirmed on administrative appeal. Petitioner commenced this proceeding challenging the determination.
Initially, we reject petitioner's contention that the determination is, per se, unsupported by substantial evidence on the ground that it is supported only by a written misbehavior report ( see, Matter of Burgos v. Coughlin, 108 A.D.2d 194).
The misbehavior report states that petitioner cursed Correction Officer W.J. Greiner and then pushed him down onto a desk. Petitioner was restrained by other officers and pulled off Greiner. Petitioner testified that another correction officer pushed him into Greiner. However, petitioner did not call this officer or any other individuals as witnesses. Thus, the hearing officer was presented with an issue of credibility which he resolved against petitioner. It cannot be said that the determination was unsupported by substantial evidence.
We also reject petitioner's claim that he was not provided adequate assistance to prepare his defense. By failing to raise this issue at the hearing, when any error could have been rectified, petitioner waived it ( cf. Matter of Guzman v Coughlin, 90 A.D.2d 666).
Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.