Accordingly, this technical defect was harmless.") [citations omitted]; Smith v. Walker, 209 A.D.2d 799, 618 N.Y.S.2d 477, 477-78 (3d Dept. 1994) ("As for the absence from the misbehavior report of the signatures of other correction officers who witnessed the incident, we note that petitioner has failed to demonstrate any prejudice accruing to him as a result.").See Smythe v. McClellan, 226 A.D.2d 840, 641 N.Y.S.2d 144, 145 (3d Dept. 1994) ("[I]nasmuch as the correction officers who witnessed the incident either testified at the hearing or had their testimony waived by petitioner, the failure of certain officers to endorse the misbehavior report in no way prejudiced petition. . . .")
denied16 N.Y.3d 710, 2011 WL 1584761 [2011];Matter of Sital v. Fischer, 73 A.D.3d 1348, 1349, 901 N.Y.S.2d 403 [2010],lv. denied15 N.Y.3d 707, 2010 WL 3546371 [2010] ). Further, petitioner has not demonstrated any prejudice from the absence of the block officer's endorsement of the misbehavior report ( see Matter of Carter v. Goord, 266 A.D.2d 623, 624, 697 N.Y.S.2d 726 [1999];Matter of Smith v. Walker, 209 A.D.2d 799, 800, 618 N.Y.S.2d 477 [1994],lv. denied85 N.Y.2d 807, 627 N.Y.S.2d 323, 650 N.E.2d 1325 [1995] ). Finally, petitioner is precluded from asserting his contention that the hearing extension was untimely obtained, as he failed to raise this argument at the hearing ( see Matter of Williams v. Goord, 37 A.D.3d 948, 948, 829 N.Y.S.2d 277 [2007],lv.
We affirm. The Hearing Officer was not required to personally ascertain the reason for a certain inmate witness's refusal to testify, having instead made sufficient inquiry into the facts surrounding the refusal through two correction officers (see, Matter of Colon v. Goord, 245 A.D.2d 582, 584; Matter of Boyd v. Selsky, 232 A.D.2d 929, 930). Petitioner has demonstrated no prejudice accruing to him by the absence from the misbehavior report of the signatures of certain correction officers who witnessed the incident at issue (see, Matter of Carter v. Goord, 266 A.D.2d 623, 624; Matter of Smith v. Walker, 209 A.D.2d 799, 800, lv denied 85 N.Y.2d 807). The hearing was not untimely since all extensions were properly authorized (see, 7 NYCRR 251-5.1 [b]). In any event, petitioner has not alleged any prejudice flowing from the delay (see, Matter of Byas v. Goord, 272 A.D.2d 800, 801, lv denied 95 N.Y.2d 765; Matter of Proctor v. Coombe, 234 A.D.2d 749, 750). Finally, the record, which contains substantial evidence to support the Hearing Officer's conclusions, does not support petitioner's claim of Hearing Officer bias or his claim that he was denied meaningful employee assistance.
Finally, petitioner's challenge to the misbehavior report and his claim that he was denied the testimony of witnesses were not raised at the disciplinary hearing and are therefore not preserved for our review (see, Matter of Stanislas v. Senkowski, 253 A.D.2d 972; Matter of Odom v. Goord, 243 A.D.2d 1019). In any event, were we to consider the merits, we would find that the mailroom clerk's failure to file her own misbehavior report or to endorse the one prepared by the librarian does not warrant annulment since petitioner has failed to demonstrate any resulting prejudice (see, Matter of Parker v. Laundree, 234 A.D.2d 727; Matter of Smith v. Walker, 209 A.D.2d 799, lv denied 85 N.Y.2d 807). Moreover, the record discloses that petitioner waived his right to call the librarian and the mailroom clerk as witnesses by failing to request their testimony at the hearing (see, Matter of Faison v. Stinson, 221 A.D.2d 746, 747). Petitioner's remaining contentions, including his claim that the administrative proceedings were tainted by bias, have been considered and rejected as lacking in merit.
v. Lacy, 260 A.D.2d 766, 686 N.Y.S.2d 335). The testimony of petitioner and other inmate witnesses that petitioner did not kick anyone created a question of credibility for the Hearing Officer to resolve (see, Matter of Mays v. Goord, 243 A.D.2d 882). The gaps in the transcript, which are attributable to inaudible portions of the tape recording, are not so significant as to preclude meaningful review (see, Matter of Locke v. Senkowski, 254 A.D.2d 553). Petitioner's claim that respondents purposely altered the transcript to misrepresent the facts is rejected as unpersuasive (see, Matter of Hinckson v. Selsky, 259 A.D.2d 812, 687 N.Y.S.2d 200). Having investigated the incident and ascertained the facts, the correction officer was authorized to prepare the report (see, 7 NYCRR 251-3.1 [b]) and petitioner was not prejudiced by the absence of signatures on the report of employees who witnessed the incident, including the correction officer who identified petitioner at the hearing (see, Matter of Smith v. Walker, 209 A.D.2d 799, lv denied 85 N.Y.2d 807). Inasmuch as the record contains substantial evidence to support the determination without considering the confidential information that was introduced at the hearing, any error by the Hearing Officer in failing to determine reliability was harmless (see, Matter of Fletcher v. Selsky, 199 A.D.2d 865, lv denied 83 N.Y.2d 753).
Contrary to the petitioner's contention, the inmate misbehavior report issued by the New York State Department of Correctional Services was sufficiently detailed to inform him of the specific charges against him and enable him to prepare a defense to the charges against him ( see, Matter of Torres v. Coombe, 234 A.D.2d 710). Similarly, the petitioner failed to demonstrate that he was prejudiced as a result of the failure by one of the correction officers to sign the misbehavior report ( see, Matter of Serra v. Selsky, 223 A.D.2d 845; Matter of Smith v. Walker, 209 A.D.2d 799; Matter of Jimenez v. Coughlin, 206 A.D.2d 769; Matter of Smythe v. McClellan, 226 A.D.2d 840). By failing to raise the issue at a time when the alleged error could have been corrected, the petitioner waived any claim that he was prejudiced because the Hearing Officer did not personally confirm that one of his witnesses refused to testify ( see, Matter of Alstranner v. Selsky, 238 A.D.2d 658; Matter of Cowart v. Coughlin, 194 A.D.2d 1036; Matter of Dotson v. Coughlin, 191 A.D.2d 912).
The charge was not based upon the confidential information, but upon the results of the search of petitioner's cube ( see, Matter of Parker v. Laundree, 234 A.D.2d 727; Matter of Shabazz v. Coughlin, 212 A.D.2d 923). Moreover, the reference of the Hearing Officer to the statement in the misbehavior report regarding the confidential informant's tip does not require annulment in light of the substantial evidence of petitioner's guilt ( see, Matter of Emmons v. Selsky, 238 A.D.2d 651; Matter of Gardiner v. Senkowski, 234 A.D.2d 708; Matter of Hernandez v. Coughlin, 206 A.D.2d 578, 579, appeal dismissed and lv denied 84 N.Y.2d 1024). Finally, although it appears that one of the correction officers involved in the search of petitioner's cube did not sign the misbehavior report ( see, 7 NYCRR 251-3.1 [b]), that omission does not provide a basis for annulment; petitioner has not demonstrated that he was prejudiced thereby ( see, Matter of Bolling v. Coombe, 234 A.D.2d 730; Matter of Smith v. Walker, 209 A.D.2d 799, 800, lv denied 85 N.Y.2d 807). (CPLR art 78 Proceeding
While it is uncontested that petitioner failed to return from his temporary release from Edgecombe Correctional Facility in New York City and that he was arrested 28 days after his required return date, petitioner challenges the determination of his guilt on various procedural grounds. We have examined petitioner's assertions of procedural error, however, and find that they are without merit; even if they had merit, petitioner has failed to demonstrate that any prejudice accrued to him as a result thereof (see, Matter of Smith v. Walker, 209 A.D.2d 799, 800). Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur.
Here, the report provided petitioner with enough details so that he could adequately respond to the charges ( see, Matter of Abdur-Raheem v Mann, 85 NY2d 113, 123). As for the absence from the misbehavior report of the endorsements of other correction officers who either witnessed the search or ordered it, even if it is accepted that such omissions constituted error, they do not warrant annulment since petitioner has failed to demonstrate any prejudice accruing to himself as a result ( see, Matter of Smith v Walker, 209 AD2d 799, lv denied 85 NY2d 807). We also reject petitioner's claim of inadequate employee assistance.
The regulation provides that "[w]here more than one employee has personal knowledge of the facts" underlying the misbehavior report, "each employee shall make a separate report" or "shall endorse his/her name on a report made by one of the employees" ( 7 NYCRR 251-3.1 [b]). Although the misbehavior report filed against petitioner, which was prepared by the correction officer who tested the contraband, was endorsed by only one of the two correction officers who conducted the search, petitioner has not demonstrated that he was prejudiced in any way by the omission of the second officer's signature. Accordingly, this technical defect was harmless ( see, Matter of Smythe v McClellan, 226 AD2d 840; Matter of Smith v Walker, 209 AD2d 799, lv denied 85 NY2d 807). We have considered petitioner's challenges to the Hearing Officer's evidentiary rulings and manner of conducting the hearing and find them to be without merit.