IN RE: Tony HARRISON (2008)

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

Petitioner was charged in a misbehavior report with forcing another inmate to engage in a sexual act, making threats, engaging in physical contact with another inmate and engaging in violent conduct.   Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of the correction sergeant who prepared it and that of the inmate who was victimized, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Santiago v. Goord, 11 A.D.3d 845, 846, 783 N.Y.S.2d 154 [2004], lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 [2004];  Matter of Garrett v. Selsky, 228 A.D.2d 758, 643 N.Y.S.2d 725 [1996] ).   Contrary to petitioner's claim, the record discloses that the hearing was commenced and completed in a timely manner insofar as appropriate extensions were obtained by the Hearing Officer (see Matter of Davis v. Goord, 34 A.D.3d 1027, 1028, 824 N.Y.S.2d 460 [2006];  Matter of Berry v. Goord, 13 A.D.3d 947, 947, 787 N.Y.S.2d 439 [2004];  see also 7 NYCRR 251-5.1[a], [b] ).  Likewise, there is no merit to petitioner's claim that he was denied adequate employee assistance inasmuch as the assistant could not produce documents that did not exist (see Matter of Roye v. Goord, 34 A.D.3d 1134, 824 N.Y.S.2d 491 [2006];  Matter of Hynes v. Goord, 30 A.D.3d 652, 653, 817 N.Y.S.2d 168 [2006] ).   In sum, we find no reason to disturb the determination of guilt.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.