Booker v. Rivera

Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered March 15, 2000 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule. Following a tier II hearing, petitioner was found guilty of violating the prison disciplinary rule which prohibits inmates from being out of place. The determination of guilt was upheld on administrative appeal and petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal followed. We affirm. Petitioner’s sole argument is his claim that he was improperly denied an employee assistant to aid in his defense. There is no question that petitioner was not entitled under the applicable regulatory provisions to an employee assistant under the circumstances pertaining to his tier II hearing (see generally, 7 NYCRR 251-4.1). Instead, petitioner maintains that the policy restricting the use of employee assistants in the majority of tier II proceedings is unconstitutional, an argument this Court has previously considered and 986 rejected (see, Matter of Cliff v De Celle, 260 AD2d 812, 813-814, ;v denied 93 NY2d 814; see also, Matter of Webb v McGinnis, 271 AD2d 767; Matter of Rivera v Senkowski, 264 AD2d 873). Mercure, J. P., Peters, Graffeo, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.