Opinion
March 11, 1994
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Determination unanimously confirmed and petition dismissed. Memorandum: We reject the contention that respondent's failure to provide petitioner with employee assistance at his disciplinary hearing violated respondent's rules and regulations and deprived him of due process of law (cf., Matter of Burke v. Coughlin, 97 A.D.2d 862). Petitioner waived his right to an employee assistant by refusing to sign an employee assistant selection form. The failure to select an assistant and proceed without one "was a circumstance of [petitioner's] own creation and did not amount to a deprivation of due process" (Matter of Bates v. Kelly, 152 A.D.2d 1009; see also, Matter of Peart v. Kelly, 134 A.D.2d 843, lv denied 71 N.Y.2d 801).
The determination of guilt on all charges contained in the two misbehavior reports is supported by substantial evidence (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139).