IN RE: Jose RIVERA (1997)

Appeal from a judgment of the Supreme Court (Kane, J.), entered October 17, 1996 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit disobeying an order, possession of a controlled substance (marihuana) and assault upon a staff member.   There is no merit to petitioner's contention that he was denied effective employee assistance at his disciplinary hearing.   The assistant's inability to present the testimony of two inmate witnesses and certain requested documents was not the result of ineffectiveness but was instead due to circumstances beyond his control, e.g., the witnesses could not be located despite reasonable efforts to do so and the documents were privileged or, in some cases, nonexistent (see, Matter of Green v. Coombe, 234 A.D.2d 756, 757, 651 N.Y.S.2d 929, 930;  Matter of Gonzalez v. Mann, 186 A.D.2d 876, 877, 589 N.Y.S.2d 110).   Petitioner's remaining contentions have been examined and found to be similarly without merit.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.