IN RE: James E. CLIFF

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

IN RE: James E. CLIFF, Petitioner, v. Donald SELSKY, as Appeal Reviewer, Respondent.

Decided: April 18, 2002

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and ROSE, JJ. James E. Cliff, Comstock, petitioner pro se. Eliot Spitzer, Attorney-General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

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

Petitioner was charged in a misbehavior report with creating a disturbance, disobeying a direct order and threatening staff as the result of an incident in the facility weight yard.   After being found guilty of the charges at a tier III hearing and following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to review the determination.   Petitioner's initial arguments focus on what he claims to be a number of procedural errors.

 The claim that the hearing was delayed without proper extensions is not supported by the record.   In any event, petitioner has alleged no prejudice from the delay (see, Matter of Byas v. Goord, 272 A.D.2d 800, 708 N.Y.S.2d 509, lv. denied 95 N.Y.2d 765, 716 N.Y.S.2d 640, 739 N.E.2d 1145).   In support of his claim that he was not provided with adequate employee assistance, he notes that the assistant failed to obtain statements from two correction officers as requested by petitioner.   The assistant reported, however, that the officers stated that they would testify at the hearing and the record reveals that petitioner made no effort to have them called as witnesses at the hearing.   With regard to the documents requested by petitioner, he was provided with some and informed that others did not exist, were confidential or were irrelevant.   The videotape of the yard was recycled in good faith (see, Matter of Rodriquez v. Coombe, 238 A.D.2d 691, 656 N.Y.S.2d 405).   Accordingly, the assistant did all that was possible.

 The detailed misbehavior report and testimony of the author of the report confirming its accuracy provided substantial evidence to support the determination of petitioner's guilt (see, Matter of Cliff v. Brady, 290 A.D.2d 895, 737 N.Y.S.2d 168).   Petitioner's denials and the exculpatory testimony of his witnesses created a question of credibility for the Hearing Officer to resolve (see, Matter of Ellison v. Goord, 269 A.D.2d 639, 704 N.Y.S.2d 168).   We reject petitioner's claim that he was entitled to collateral information regarding the author of the misbehavior report which, according to petitioner, might have been relevant to the author's credibility.   We also find no evidence in the record to support petitioner's claim that the Hearing Officer was biased or that the determination flowed from an alleged bias and not from the substantial evidence of petitioner's guilt (see, Matter of Stile v. Goord, 285 A.D.2d 693, 727 N.Y.S.2d 736).   We have considered petitioner's other arguments and find them without merit.

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

CARPINELLO, J.

CARDONA, P.J., CREW III, SPAIN and ROSE, JJ., concur.

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