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

IN RE: Jacob RUSSELL, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: April 24, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KAVANAGH, JJ. Jacob Russell, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), 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.

Petitioner was charged in a misbehavior report with committing an unhygienic act-namely, spitting in a water cooler from which correction officers obtained their drinking water.   Following a tier III disciplinary hearing, petitioner was found guilty and a penalty of five months in the special housing unit and a corresponding loss of privileges was imposed.   That determination was affirmed upon administrative review, prompting petitioner to commence this proceeding pursuant to CPLR article 78.

 We confirm.   The misbehavior report, together with the testimony of the correction officers who witnessed the incident, provide substantial evidence of petitioner's guilt (see Matter of Johnson v. Goord, 40 A.D.3d 1335, 1336, 836 N.Y.S.2d 737 [2007] ).   Petitioner's denial of the incident, and the testimony of a fellow inmate as to petitioner's whereabouts at the time, presented a credibility issue for the Hearing Officer to resolve (see Matter of Parker v. Goord, 247 A.D.2d 694, 695, 668 N.Y.S.2d 754 [1998] ).

 Nor are we persuaded that petitioner was denied the right to present relevant evidence.   Petitioner sought the testimony of a particular correction officer to establish that he was not keeplocked at the time indicated on the misbehavior report, thus, in petitioner's view, casting doubt upon the overall veracity of the report.   The Hearing Officer denied the request, noting that whether petitioner was confined following the incident and/or what time that occurred was irrelevant to whether he committed an unhygienic act.   Petitioner raised no objection in this regard, nor did he subsequently renew his request for this witness.   Under such circumstances, petitioner has failed to preserve this issue for our review (see Matter of Towles v. Selsky, 12 A.D.3d 737, 738, 783 N.Y.S.2d 431 [2004], lv. denied 4 N.Y.3d 706, 794 N.Y.S.2d 300, 827 N.E.2d 284 [2005];  Matter of Blackwell v. Goord, 5 A.D.3d 883, 885, 772 N.Y.S.2d 761 [2004], lv. denied 2 N.Y.3d 708, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004] ).

 Petitioner also sought the production of the “go around” lists for his company, which, he contends, would have shown that he was not present in D block at the time of the incident and, hence, could not have committed the unhygienic act alleged.   The record reflects, however, that such lists are maintained for only 72 hours and, therefore, by the time the hearing commenced-five days after the misbehavior report was written-the lists no longer existed.   As there is no indication that the requested records were destroyed in bad faith (see Matter of Morgan v. Goord, 10 A.D.3d 792, 793, 781 N.Y.S.2d 812 [2004] ), the Hearing Officer cannot be faulted for failing to produce documents that did not exist (see Matter of Ciotoli v. Goord, 256 A.D.2d 1192, 1193, 683 N.Y.S.2d 683 [1998];  Matter of Parker v. Goord, 247 A.D.2d at 695, 668 N.Y.S.2d 754).

 Finally, petitioner asserts that he was denied adequate employee assistance.   Although petitioner indeed raised this point at the start of the disciplinary hearing, the hearing was adjourned to respond to petitioner's various requests and, ultimately, petitioner indicated that he was satisfied with the assistance provided (see Matter of Blackwell v. Goord, 5 A.D.3d at 884-885, 772 N.Y.S.2d 761).   Moreover, based upon our review of the record as a whole, we find no merit to petitioner's claim that he was prejudiced by any alleged deficiencies that may have existed (see Matter of Abdullah v. Goord, 36 A.D.3d 978, 979, 826 N.Y.S.2d 505 [2007];  Matter of Miller v. Goord, 1 A.D.3d 647, 648-649, 766 N.Y.S.2d 466 [2003] ).   Accordingly, the underlying determination is confirmed.

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



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