Wiederhold v. Scully

141 A.D.2d 550, 529 N.Y.S.2d 709, 1988 N.Y. App. Div. LEXIS 6264

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of Green Haven Correctional Facility, dated August 20, 1987, as modified October 26, 1987, finding the petitioner guilty of violation of prison disciplinary rules and imposing a penalty.

Adjudged that the determination, as modified, is confirmed and the proceeding is dismissed, without costs or disbursements.

We have reviewed the record and find no support for the petitioner’s claim that he was denied his right to call witnesses on his behalf. The witness that the petitioner requested had no direct knowledge of the incident in issue, and therefore it was within the discretion of the Hearing Officer to exclude him as a witness (see, 7 NYCRR 254.5 [a]). Although the petitioner was not provided with a written notice stating the reason for the denial of his request (7 NYCRR 254.5 [a]), he was not prejudiced as a result since the reason for the exclusion was fully discussed at the hearing (see generally, Matter of Cortez v Coughlin, 67 NY2d 907). Furthermore, the petitioner is not entitled to be furnished with the testimony of the confidential witness as such would pose a serious danger to that witness (see, 7 NYCRR 254.5 [b]; Wolff v McDonnell, 418 ). The record as a whole establishes that the determination under review was supported by substantial evidence (see, Matter of Perez v Wilmot, 67 NY2d 615; People ex rel. Vega v Smith, 66 NY2d 130). Accordingly, the determination is confirmed. Bracken, J. P., Brown, Lawrence and Spatt, JJ., concur.