Opinion
September 24, 1992
Appeal from the Supreme Court, Chemung County (Swartwood, J.).
We reject petitioner's contention that he was improperly denied employee assistance. Even if we were to find that petitioner's destruction of the documents and paperwork presented to him by his employee assistant did not constitute a waiver of his right to assistance (see, Matter of Peart v Kelly, 134 A.D.2d 843, lv denied 71 N.Y.2d 801), it is clear from the record that all material witnesses requested by petitioner testified, and petitioner thus suffered no prejudice from any denial of employee assistance (see, Matter of Irby v Kelly, 161 A.D.2d 860; Matter of Serrano v Coughlin, 152 A.D.2d 790). We also reject petitioner's argument that the hearings were untimely. Extensions were properly granted due to the unavailability of the employee assistant (see, Matter of Agosto v Coughlin, 153 A.D.2d 1008). In addition, the Hearing Officer properly adjourned the hearing to locate witnesses requested by petitioner ( 7 NYCRR 251-5.1; see, Matter of McCoy v Leonardo, 175 A.D.2d 358). In any event, the hearings were commenced and completed within the times required by the applicable regulation ( 7 NYCRR 251-5.1) . Finally, given that the separate misbehavior reports were based upon different observations of specific and distinct actions by petitioner, his double jeopardy claim also lacks merit (see, Matter of Fletcher v Coughlin, 161 A.D.2d 869).
Mikoll, J.P., Levine, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.