IN RE: Patrick MORRISON

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

IN RE: Patrick MORRISON, Petitioner, v. Donald SELSKY, as Director of the Special Housing Unit, et al., Respondents.

Decided: January 29, 1998

Before MIKOLL, J.P., and MERCURE, WHITE, PETERS and SPAIN, JJ. Patrick Morrison, Pine City, in person. Dennis C. Vacco, Attorney General (Peter G. Crary, of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany 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 prison disciplinary rules prohibiting assaults, fighting, possession of a weapon and refusing to obey a direct order after he engaged in an altercation with another inmate during which he stabbed the inmate several times and refused to obey repeated orders to stop.   A 9 1/212-inch metal shank was later retrieved from petitioner's hand.   Following an unsuccessful administrative appeal, petitioner commenced this proceeding.   We confirm.   Initially, we find that the hearing, commenced four days after the initial meeting between petitioner and his employee assistant, was timely (see, 7 NYCRR 254.6[a];  Matter of Odom v. Goord, 243 A.D.2d 1019, 665 N.Y.S.2d 353, 354).   Petitioner's contention that he was denied the right to call a certain witness in violation of his due process rights is unavailing.   While it is true that the Hearing Officer refused to call the physician who had examined the victim at the hospital and failed to provide petitioner with a written explanation for the denial (see, 7 NYCRR 254.5[a] ), we nonetheless find no reason to set aside the determination since the record discloses the reason for the denial, i.e., the physician's testimony as to the extent of the victim's injuries would be immaterial to the charges and redundant to the unusual incident report which described the injuries (see, Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 551 N.Y.S.2d 184, 550 N.E.2d 437).   Petitioner's remaining arguments, including his claim of Hearing Officer bias, have been examined and found to be without merit.

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

MEMORANDUM DECISION.

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