Culbreath v. Selsky

257 A.D.2d 910, 684 N.Y.S.2d 664, 1999 N.Y. App. Div. LEXIS 514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1999
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered August 11, 1998 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Following a hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits assaulting other inmates. Following the denial of his administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt and Supreme Court dismissed the petition. We affirm. Petitioner’s sole contention on appeal is that the Hearing Officer failed to make a meaningful attempt to secure the testimony of the inmate who was the victim of the subject assault. The record indicates that this witness signed a form refusing to testify after the Hearing Officer sent a correction officer to ask the witness to testify and inquire into the reason for any refusal. The correction officer reported back that the witness declined to give any reason for his refusal; thus, the appropriate inquiry was made. In any event, although it is true that the Hearing Officer did not personally verify the witness’s refusal (see, e.g., Matter of Barnes v LeFevre, 69 NY2d 649, 650), we find no basis for reversal under the circumstances here, especially since our review of the record “discloses the basis for the denial” (Matter of Luna v Coughlin, 210 AD2d 757).

Mercure, J. P., Crew III, Yesawich Jr., Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.