Dabney v. Selsky

284 A.D.2d 817, 726 N.Y.S.2d 602, 2001 N.Y. App. Div. LEXIS 6844

Opinion

Carpinello, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

The detailed misbehavior reports authored by correction officers who observed the incidents and the testimony of a correction officer who was present during both of the incidents provide substantial evidence to support the determination finding petitioner guilty of violating certain prison disciplinary rules as a result of two separate incidents which occurred on July 2, 1999 (see, Matter of Foster v Coughlin, 76 NY2d 964). Petitioner’s claims of retaliation presented a question of credibility for the Hearing Officer to resolve (see, Matter of Daum v Goord, 270 AD2d 745). By refusing to select an available employee assistant when he was advised that the employee he originally selected was unavailable, petitioner waived his claim that he was denied the right to select an employee assistant (see, Matter of Odom v Goord, 257 AD2d 868). Similarly, by voluntarily leaving the hearing before his requests to view a videotape and have certain witnesses testify could be accommodated, petitioner waived his procedural claims regarding those matters (see, Matter of Cunningham v Goord, 274 AD2d 814). Petitioner’s remaining claim of Hearing Officer bias is unsupported by the record.

Cardona, P. J., Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.