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IN RE: Donald P. JOYCE (1998)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Donald P. JOYCE, Petitioner, v. Glenn S. GOORD, as Commissioner of the New York State Department of Correctional Services, Respondent.

Decided: January 29, 1998

Before CARDONA, P.J., and MERCURE, CREW, YESAWICH and PETERS, JJ. Donald P. Joyce, Alden, in person. Dennis C. Vacco, Attorney General (Francis V. Dow, of counsel), Albany, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review five determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, while an inmate at Auburn Correctional Facility in Cayuga County, was charged in five separate misbehavior reports with violating certain prison disciplinary rules.   Following four unsuccessful administrative appeals, petitioner commenced this proceeding pursuant to CPLR article 78, subsequently transferred to this court, challenging respondent's determinations on a variety of grounds.

 Prefatorily, we note that since petitioner refused to appear at the tier II hearing regarding the March 20, 1996 misbehavior report, he waived any right to challenge respondent's determination on the basis of procedural irregularities (see, Matter of Cotton v. Coughlin, 167 A.D.2d 584, 563 N.Y.S.2d 537).   Furthermore, since respondent's March 27, 1996 determination was administratively reversed and the charges were expunged from petitioner's record, his claims regarding that determination are now moot.

 Case data worksheets regarding respondent's three remaining determinations demonstrate that in each case petitioner was given the misbehavior reports, which have been held sufficiently specific to allow petitioner to respond (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 623 N.Y.S.2d 758, 647 N.E.2d 1266).   As such, petitioner's contention that he was denied the right to be properly advised of the charges against him and the opportunity to comment thereon is without merit.   Likewise, we do not find that petitioner was denied adequate employee assistance.   Viewing the actions of the various assistants as a whole, petitioner was provided with meaningful representation (see, Matter of Clavijo v. Coombe, 236 A.D.2d 692, 692-93, 653 N.Y.S.2d 724, 725).   In each case petitioner completed the request for assistance form and each assistant met with petitioner, interviewed requested witnesses, provided petitioner with all documents he was entitled to and reported the results of these efforts to petitioner.   Moreover, petitioner failed to demonstrate that his assistants' alleged inadequacies prejudiced his defense (see, Matter of Greene v. Coombe, 242 A.D.2d 796, 797, 662 N.Y.S.2d 148, 149;  Matter of Coniglio v. Mitchell, 198 A.D.2d 565, 567, 603 N.Y.S.2d 93).

 We further reject petitioner's contention of bias as “merely self-serving and without substantiation in the record” (Matter of Coniglio v. Mitchell, supra, at 567, 603 N.Y.S.2d 93).   Although the transcripts reveal that the Hearing Officers became frustrated with petitioner's unwillingness to focus on the instant charges instead of on other court proceedings and prison grievances, in our view there was no indication of a prejudgment of guilt (see, Matter of McClean v. Coombe, 242 A.D.2d 846, 847, 662 N.Y.S.2d 277).   In addition, petitioner's removal due to his hostile and uncooperative behavior was permissible (see, Matter of Jones v. Selsky, 223 A.D.2d 990, 991, 636 N.Y.S.2d 877).

 Equally without merit is petitioner's contention that it was error for the Hearing Officers to take testimony outside of petitioner's presence where petitioner provided the questions and received tapes of the interviews (see, Matter of Bernacet v. Coughlin, 145 A.D.2d 802, 804, 535 N.Y.S.2d 785, lv. denied 74 N.Y.2d 603, 542 N.Y.S.2d 518, 540 N.E.2d 713).   Nor did the Hearing Officers abuse their discretion by disallowing the testimony of character witnesses (see, Matter of Danaher v. Coombe, 242 A.D.2d 754, 661 N.Y.S.2d 858, 859), inmate witnesses whose testimony would have been redundant and facility staff who had no knowledge of the incident (see, Matter of Greene v. Coombe, 238 A.D.2d 813, 814, 656 N.Y.S.2d 522, 523).

 Finally, we reject petitioner's general claims that he was denied the right to receive and present relevant documentary evidence in his defense (see, id., at 523) and find that the misbehavior reports, written by those correction officers who witnessed each incident, together with the testimony of correction officers who were present during the events, provided substantial evidence supporting the administrative determinations (see, Matter of Samuels v. Goord, 242 A.D.2d 841, 662 N.Y.S.2d 612, 613).

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

PETERS, Justice.


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