Gill v. Selsky

240 A.D.2d 831, 659 N.Y.S.2d 816, 1997 N.Y. App. Div. LEXIS 6544

Opinion

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

Petitioner was found guilty of violating the prison disciplinary rules which prohibit interfering with an employee, refusing a direct order and making threats.

Footnotes

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* The record fails to support petitioner’s contention that the misbehavior report was in retaliation for the numerous lawsuits and grievances he has filed against the correction officer who authored the misbehavior report. Instead, the record establishes that the misbehavior report, the log book entries and the testimony of the correction officer supports the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964). We find no merit in petitioner’s claim of ineffective employee assistance in light of his failure to establish any prejudice resulting therefrom (see, Matter of Jenkins v Coughlin, 190 AD2d 937, lv denied 82 NY2d 651). We also reject petitioner’s contention that the Hearing Officer improperly denied his request to call additional witnesses and to recall other witnesses inasmuch as their testimony would have been irrelevant or redundant (see, Matter of Bryant v Mann, 199 AD2d 676). Petitioner’s remaining contentions have been reviewed and are either without merit or not properly before this Court.

Cardona, P. J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

The Hearing Officer dismissed a second misbehavior report charging petitioner with violating prison disciplinary rules which prohibit harassment, lying and refusing a direct order.