RIVERA v. GOORD (1998)

Petitioner was charged with violating inmate rules 104.11 (7 NYCRR 270.2 [B][5][ii] [violent conduct] ), 100.10 (7 NYCRR 270.2[B][1][i] [assault] ), and 100.13 (7 NYCRR 270.2[B][1][iv] [fighting] ).   According to the misbehavior report, an inmate told a correction officer that he had been stabbed by three other inmates in a dorm bathroom.   The victim identified his attackers by bed numbers and nicknames and thereafter was asked to identify his assailants.   The victim positively identified three inmates, including petitioner, from photo files.

 Petitioner contends that he was denied due process at his Tier III hearing because he was not allowed to question the victim.   Petitioner had no right to question or cross-examine the victim, who refused to testify on behalf of petitioner and instead testified at the request of the Hearing Officer (see, Matter of Colon v. Goord, 245 A.D.2d 582, 583-584, 665 N.Y.S.2d 118;  see also, Matter of Graham v. New York State Dept. of Correctional Servs., 178 A.D.2d 870, 577 N.Y.S.2d 728, lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 192, 592 N.E.2d 800;  see generally, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935).   Additionally, the determination is supported by substantial evidence.   The fact that the incident was unwitnessed does not compel a contrary result (see, Matter of Allen v. Goord, 252 A.D.2d 973, 676 N.Y.S.2d 372).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM.