Victor v. Goord

253 A.D.2d 971, 680 N.Y.S.2d 118, 1998 N.Y. App. Div. LEXIS 9530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1998
• Status: Published

Opinion

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

Petitioner, a prison inmate, was charged with and found guilty of possessing a weapon in violation of prison disciplinary rules after a razor blade was found secreted in his mouth. Petitioner challenges the determination of his guilt and we confirm. To the extent that petitioner raised an issue of substantial evidence, we conclude that the detailed misbehavior report, together with the corroborating unusual incident report, memoranda and testimony presented at the hearing, provide substantial evidence to support the determination of guilt (see, Matter of Foster v Coughlin, 76 NY2d 964). We reject petitioner’s contention that the Hearing Officer’s failure to inquire as to why the witnesses requested would not testify denied petitioner the right to call witnesses. The record establishes that petitioner waived any objection in this regard by acquiescing to the witnesses’ refusal to testify without requesting further inquiry and indicating his willingness to proceed with the hearing (see, Matter of McClean v LeFevre, 142 AD2d 911, 912). We find petitioner’s remaining contentions, including his claim of Hearing Officer bias and assertion that the hearing transcript is incomplete, to be either without merit or unpreserved for our review.

Mikoll, J. P., Crew III, Peters, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.