IN RE: Jose SANTIAGO

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

IN RE: Jose SANTIAGO, Petitioner, v. Donald SELSKY, as Director of the Department of Correctional Services Special Housing/Inmate Disciplinary Program, Respondent.

Decided: November 21, 2001

Before:  CARDONA, P.J., CREW III, CARPINELLO, ROSE and LAHTINEN, JJ. Jose Santiago, Fallsburg, petitioner pro se. Eliot Spitzer, Attorney General (Alicia R. Ouellette of counsel), Albany, for respondent.

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 a prison disciplinary rule.

 Contrary to petitioner's contention, substantial evidence supports the determination finding him guilty of violating the prison disciplinary rule that prohibits harassing a facility employee (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   According to the misbehavior report and testimony of the correction officer involved in the incident, petitioner approached the female correction officer and told her that he has had feelings of a personal nature toward her for several years.   To the extent that petitioner denied the incident, this created a credibility issue which the Hearing Officer was free to resolve against petitioner (see, Matter of Nieves v. Selsky, 263 A.D.2d 795, 694 N.Y.S.2d 796).   Although the correction officer did not issue the misbehavior report until two days after the incident, she explained that she was waiting to discuss the matter with her supervisor.

 We also reject petitioner's assertion that he was improperly denied employee assistance.   Petitioner was not entitled to employee assistance inasmuch as he was not illiterate, non-English speaking, sensorially disabled or confined pending the hearing (see, 7 NYCRR 251-4.1[a];  Matter of Covington v. Coombe, 255 A.D.2d 838, 682 N.Y.S.2d 112).   Furthermore, we find no abuse of discretion in the Hearing Officer denying petitioner's request for employee assistance (see, 7 NYCRR 251-4.1[b] ).

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

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