IN RE: Ricardo JOSEPH (2009)

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

As petitioner was exiting his prison cell, he turned violently and struck a correction officer in the face with his clenched fist.   Officers immediately subdued petitioner, but he continued to struggle despite their repeated orders to cease.   As a result, petitioner received a misbehavior report charging him with assaulting staff, interference, violent conduct and refusing a direct order.   Petitioner was found guilty on all counts after a tier III disciplinary hearing, and an unsuccessful administrative appeal followed.   Petitioner, thereafter, commenced this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, along with the supporting documentation and hearing testimony of the correction officers involved in the altercation, provide substantial evidence to support the determination (see Matter of Geraci v. Fischer, 63 A.D.3d 1467, 1468, 880 N.Y.S.2d 865 [2009];  Matter of Smith v. Dubray, 58 A.D.3d 968, 968-969, 871 N.Y.S.2d 758 [2009] ).   The Hearing Officer did not err in refusing petitioner's request to call the supervising sergeant as a witness, inasmuch as the unusual incident report made clear that he was not present at the time of the incident and, thus, had no personal knowledge of the facts (see Matter of Gimenez v. Artus, 63 A.D.3d 1461, 1462, 881 N.Y.S.2d 551 [2009];  Matter of Sutherland v. Selsky, 61 A.D.3d 1188, 1189, 876 N.Y.S.2d 771 [2009] ).

 Petitioner's contention that the Hearing Officer failed to ascertain the reasons for several inmates' refusal to testify is not preserved for our review, inasmuch as he failed to raise that objection during the hearing (see Matter of McCollum v. Fischer, 61 A.D.3d 1194, 1194, 876 N.Y.S.2d 766 [2009], lv. denied 13 N.Y.3d 703, 886 N.Y.S.2d 365, 915 N.E.2d 290 [2009];  Matter of Williams v. Goord, 37 A.D.3d 948, 948, 829 N.Y.S.2d 277 [2007], lv. denied 8 N.Y.3d 1021, 839 N.Y.S.2d 452, 870 N.E.2d 693 [2007] ).   Finally, we agree with petitioner that the Hearing Officer should not have denied disclosure of the injured correction officer's medical records absent a showing that institutional safety would have been jeopardized (see Matter of McLean v. Fischer, 63 A.D.3d 1468, 1469-1470, 884 N.Y.S.2d 265 [2009];  Matter of Mack v. Goord, 49 A.D.3d 1045, 1046, 853 N.Y.S.2d 704 [2008], lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008] ).   However, we find the error to be harmless considering the overwhelming evidence against petitioner (see Matter of McLean v. Fischer, 63 A.D.3d at 1470, 884 N.Y.S.2d 265;  Matter of Mack v. Goord, 49 A.D.3d at 1046, 853 N.Y.S.2d 704).   We have examined petitioner's remaining contentions and find them to be lacking in merit.

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