Valdez v. Williams

256 A.D.2d 1118, 684 N.Y.S.2d 729, 1998 N.Y. App. Div. LEXIS 14219

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The misbehavior report constitutes substantial evidence to support the determination that petitioner violated inmate rules 104.10 (7 NYCRR 270.2 [B] [5] [i]), 104.11 (7 NYCRR 270.2 [B] [5] [ii]), and 104.12 (7 NYCRR 270.2 [B] [5] [iii]) in connection with his role in a major disturbance at the Mohawk Correctional Facility involving 350 inmates, several of whom assaulted correction officers (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s defense raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Polite v Goord, 248 AD2d 1017). Contrary to petitioner’s contention, the hearing was timely commenced because an extension was granted authorizing the hearing to commence 10 days after petitioner was confined to a special housing unit (see, 7 NYCRR 251-5.1 [a]). Petitioner contends that he was denied his right to question the author of the misbehavior report. In the absence of a request by petitioner to call that correction officer as a witness, however, the Hearing Officer was under no obligation to call him to testily (see, Matter of Perez v Wilmot, 67 NY2d 615, 617; Matter of Hardwick v Coughlin, 187 AD2d 1034, lv denied 81 NY2d 707). The remaining contentions of petitioner were not raised in his administrative appeal, and this Court has no discretionary power to review them (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, O’Donnell, J.) Present — Green, J. P., Wisner, Hayes,' Balio and Fallon, JJ.