Rivera v. Coughlin

179 A.D.2d 949, 579 N.Y.S.2d 223, 1992 N.Y. App. Div. LEXIS 872

Opinion

Petitioner claims that the Hearing Officer improperly failed to investigate the fight which led to the charges against him and to review the misbehavior reports issued to other inmates involved in the incident. Petitioner never objected, however, to the procedure at the hearing at a time when any error could have been corrected; he is therefore precluded from raising the issue before this court (see, Matter of Finn v Leonardo, 160 AD2d 1074). In any event, petitioner declined to testify, to answer the Hearing Officer’s questions or to call any witnesses. He also waived any assistance. Therefore, insofar as the Hearing Officer had no obligation to present petitioner’s case for him, petitioner’s claim that the Hearing Officer should have further investigated the charges is rejected (see, Matter of Jackson v LeFevre, 128 AD2d 1001). Finally, the misbehavior report, which was authored by the correction officer who witnessed the incident, contained information of a relevant and probative nature so as to constitute substantial evidence to support the finding of guilt (see, Matter of Foster v Coughlin, 76 NY2d 964; Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). Petitioner’s remaining contentions have been considered and rejected as lacking in merit.

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