IN RE: Dennis DANAHER (1997)

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

The misbehavior report, together with petitioner's admissions, provide substantial evidence to support the determination finding petitioner guilty of violating the prison disciplinary rules which prohibit participation in a demonstration and refusing a direct order stemming from his refusal to leave his cell during a lock-in and work stoppage (see, Matter of Henry v. Coombe, 237 A.D.2d 848, 656 N.Y.S.2d 948).¹  Although petitioner testified that he did so because he feared retaliation by other inmates, this merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Grant v. Coombe, 240 A.D.2d 784, 659 N.Y.S.2d 799;  Matter of Henry v. Coombe, supra ).   Based upon our review of the record, we find that the Hearing Officer properly denied petitioner's request to call character witnesses (see, Matter of Gardiner v. Coughlin, 190 A.D.2d 962, 594 N.Y.S.2d 660, lv. denied 81 N.Y.2d 710, 600 N.Y.S.2d 197, 616 N.E.2d 854;  Matter of Oliver v. Kelly, 125 A.D.2d 947, 510 N.Y.S.2d 346, lv. denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322).   Furthermore, we reject petitioner's assertion that he was denied documentary evidence inasmuch as the tape he requested was no longer in existence (see generally, Matter of Dawes v. McClellan, 223 A.D.2d 890, 636 N.Y.S.2d 489).   Petitioner's remaining contentions have been reviewed and are either not properly before this court or without merit.

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

FOOTNOTES

1.   That part of the determination finding petitioner guilty of violating the prison disciplinary rules which prohibit being out of place and violating a movement regulation were reversed on administrative appeal.

MEMORANDUM DECISION.