Opinion
November 13, 1998
Appeal from the Supreme Court, Erie County, Burns, J.
Present — Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rule 104.13 ( 7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]) is supported by substantial evidence ( see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). Petitioner's testimony raised an issue of credibility for the Hearing Officer to resolve ( see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). Petitioner failed to demonstrate any prejudice resulting from the inadvertent failure to provide him with `a' copy of the misbehavior report containing the signature of the charging correction officer. The Hearing Officer's copy of the report was complete, petitioner was given the missing information and petitioner was given several opportunities during the hearing to call the charging correction officer as a witness, which he declined to do. There is no merit to petitioner's argument that the Hearing Officer was biased in the absence of proof in the record that the determination flowed from the alleged bias ( see, Matter of Hooper v. Goord, 247 A.D.2d 884; Matter of Dawes v. Selsky, 242 A.D.2d 907),