DAWES v. SELSKY (1999)

 The misbehavior report, together with the testimony of its author, constitutes substantial evidence to support the determination that petitioner violated various inmate rules in connection with his fight with another inmate (see, Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23;  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   Petitioner contends that respondent violated the rules and regulations of the Department of Correctional Services by assigning an employee assistant to him after petitioner's three choices of employee assistants were not available.   We disagree.   Petitioner was properly provided with “the opportunity to pick an employee from an established list of persons” to assist him in his defense (7 NYCRR 251-4.1 [a] ).   Nor was petitioner's conditional right to call witnesses violated when the Hearing Officer refused to call witnesses whose testimony would be irrelevant to the proceeding (see, 7 NYCRR 254.5[a];  Matter of Ortiz v. Rourke, 241 A.D.2d 962, 963, 661 N.Y.S.2d 401;  Matter of Barranco v. Coughlin, 222 A.D.2d 904, 905, 635 N.Y.S.2d 750;  Matter of Crandall v. Coughlin, 219 A.D.2d 823, 824, 631 N.Y.S.2d 946).   The Hearing Officer properly refused to produce documents that were not relevant (see, Matter of Ciotoli v. Goord, 256 A.D.2d 1192, 683 N.Y.S.2d 683;  Matter of Dawes v. Selsky [appeal No. 2], 242 A.D.2d 907, 678 N.Y.S.2d 924).   Finally, the record does not support petitioner's contention that the Hearing Officer was biased or that the outcome of the hearing flowed from such bias (see, Matter of Ciotoli v Goord, supra;  Matter of Crandall v. Coughlin, 219 A.D.2d 823, 823-824, 631 N.Y.S.2d 946).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: