Opinion
February 3, 2000
Appeal from a judgment of the Supreme Court (Castellino, J.), entered May 10, 1999 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.
Michael Webb, Pine City, appellant in person.
Eliot Spitzer, Attorney-General (Marcus J. Mastracco of counsel), Albany, for respondents.
Before: CARDONA, P.J., PETERS, CARPINELLO, GRAFFEO and MUGGLIN, JJ.
MEMORANDUM AND ORDER
Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from making threats. According to the misbehavior report, petitioner was seen and heard yelling obscenities and threats at two correction officers who were involved in a separate incident with another inmate in the vicinity of petitioner's cell. Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the underlying determination. Supreme Court dismissed the petition and this appeal ensued.
We affirm. Although petitioner claims that the unusual incident report prepared in connection with the separate incident was necessary to establish that the correction officers could not have seen or heard petitioner from their location, any error on the part of the Hearing Officer in refusing to furnish the report was harmless in view of the clear identification of petitioner as the individual who made the threats (see, Matter of Palin v. Coughlin, 209 A.D.2d 970). Moreover, the failure of petitioner's employee assistant to obtain the unusual incident report and additional documentation relating to the separate incident did not constitute ineffective employee assistance and, in any event, petitioner has failed to demonstrate how he was prejudiced by this alleged deficiency (see, Matter of Eckert v. Selsky, 247 A.D.2d 728). Finally, the Hearing Officer's decision to remove petitioner from the hearing once he became argumentative and uncooperative was neither an abuse of discretion nor indicative of bias (see, Matter of Dumpson v. McGinnis, 247 A.D.2d 804; Matter of Joyce v. Goord, 246 A.D.2d 926).
Petitioner's remaining contentions have been reviewed and rejected as lacking in merit.
ORDERED that the judgment is affirmed, without costs.