VALDEZ v. WILLIAMS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Francisco VALDEZ, Petitioner, v. Melvin WILLIAMS, Superintendent, Gowanda Correctional Facility, et al., Respondents.  (Proceeding No. 1.)

Decided: December 31, 1998

Present:  GREEN, J. P., WISNER, HAYES, BALIO and FALLON, JJ. Francisco Valdez, Alden, Pro Se. Peter Crary, Albany, for Respondent.

 The misbehavior report constitutes substantial evidence to support the determination that petitioner violated inmate rules 104.10 (7 NYCRR 270.2[B][5][i] ), 104.11 (7 NYCRR 270.2[B][5][ii] ), and 104.12 (7 NYCRR 270.2[B][5][iii] ) in connection with his role in a major disturbance at the Mohawk Correctional Facility involving 350 inmates, several of whom assaulted correction officers (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   Petitioner's defense raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Polite v. Goord, 248 A.D.2d 1017, 670 N.Y.S.2d 142).   Contrary to petitioner's contention, the hearing was timely commenced because an extension was granted authorizing the hearing to commence 10 days after petitioner was confined to a special housing unit (see, 7 NYCRR 251-5.1[a] ).   Petitioner contends that he was denied his right to question the author of the misbehavior report.   In the absence of a request by petitioner to call that correction officer as a witness, however, the Hearing Officer was under no obligation to call him to testify (see, Matter of Perez v. Wilmot, 67 N.Y.2d 615, 617, 499 N.Y.S.2d 659, 490 N.E.2d 526;  Matter of Hardwick v. Coughlin, 187 A.D.2d 1034, 591 N.Y.S.2d 104, lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969).   The remaining contentions of petitioner were not raised in his administrative appeal, and this Court has no discretionary power to review them (see, Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: