Kelly v. Coughlin

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commis [898] sioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged with violating prison disciplinary rules prohibiting assault, possession of a weapon and disobeyance of a direct order. The misbehavior report stated that petitioner, after being ordered to lock in, ran over to another inmate and cut him with a "razorblade type weapon”. At the hearing the correction officer who had authored the report testified, confirming the information in the report and stating that he saw petitioner attack the inmate with what appeared to be a razor blade. The report and the confirmatory testimony by the correction officer who authored it provide substantial evidence to support the determination of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). The victim of the assault was called as a witness by petitioner but signed a form indicating that he did not want to be involved because petitioner "cut” him. Petitioner contends that the Hearing Officer erred in failing to make further inquiry as to why the victim would not testify. We find that petitioner waived any objection to the procedure followed by the Hearing Officer by failing to insist that the victim be called to testify or that further inquiry be made at the hearing (see, Matter of Dixon v Coughlin, 178 AD2d 984; Matter of Lebron v Coughlin, 169 AD2d 859, lv denied 78 NY2d 852; Matter of Crowley v O’Keefe, 148 AD2d 816, lv denied 74 NY2d 613; cf., Matter of Codrington v Mann, 174 AD2d 868). Mikoll, J. P., Yesawich Jr., Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.