IN RE: Wilfredo POLANCO (1999)

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

 Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from making threats, attempting to force others to engage in sex, harassing an employee verbally or by obscene gesture, disturbing the order of the facility and refusing a direct order.   The misbehavior report indicates that petitioner became upset when given a direct order and began yelling sexual obscenities and threats at a female teacher.   The detailed misbehavior report, written by the employee involved in the incident and endorsed by two correction officers who witnessed petitioner's conduct, provides substantial evidence to support the determination of guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Israel v. Leonardo, 201 A.D.2d 822, 607 N.Y.S.2d 494).

 Furthermore, we reject petitioner's assertion that he was denied due process as a result of his employee assistant's failure to obtain documentary evidence relating to mandatory call-out procedures inasmuch as petitioner has failed to demonstrate any prejudice thereby (see, Matter of Greene v. Coombe, 242 A.D.2d 796, 797, 662 N.Y.S.2d 148, lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630).   In any event, even if petitioner possessed a mandatory call-out slip to report to health services, the procedures related thereto would not justify his conduct as charged in the misbehavior report (see, e.g., Matter of Irby v. Kelly, 161 A.D.2d 860, 861, 556 N.Y.S.2d 409).

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

MEMORANDUM DECISION.