IN RE: Francisco RIVERA (1999)

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

 Following a tier II hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from being out of place.   According to the misbehavior report, petitioner was told to stand on a platform;  however, the author of the misbehavior report later saw him standing in the smoking area socializing.   Petitioner's administrative appeal of the determination of guilt was unsuccessful, prompting him to commence this CPLR article 78 proceeding which we now confirm.   Contrary to petitioner's argument, the misbehavior report and the testimony adduced at the hearing provide substantial evidence of his guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Although petitioner gave various exculpatory explanations for his behavior, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811, 669 N.Y.S.2d 403).   Next, we have examined petitioner's allegations of Hearing Officer bias and find them to be unsubstantiated in the record.   In any event, petitioner has failed to demonstrate that the outcome of the hearing flowed from the alleged bias (see, Matter of Di Rose v. Coombe, 233 A.D.2d 799, 650 N.Y.S.2d 429).   Contrary to petitioner's argument, he was not entitled to an assistant to aid in his defense under the circumstances pertaining to his tier II hearing (see generally, 7 NYCRR 251-4.1) and he has failed to demonstrate that this policy is unconstitutional.   We have examined petitioner's remaining claims, including his assertion that he was improperly denied the right to call relevant witnesses, and find them to be without merit.

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

MEMORANDUM DECISION.