Davies v. Johnson — 203 A.D.2d 970

Majority

p. 970

In the Matter of Robert M. Davies, Petitioner, v Sally B. Johnson, as Superintendent of the Orleans Correctional Facility, et al., Respondents.

[612 NYS2d 1018]

—Determination unanimously confirmed and petition dismissed. Memorandum: The determination made at petitioner’s Tier III disciplinary hearing that petitioner violated inmate rule 108.14 (7 NYCRR 270.2 [B] [9] [v]) is supported by substantial evidence (see, Matter of Foster v Coughlin, 76 NY2d 964 ). Moreover, we conclude that petitioner was not deprived of his right to call witnesses; the Hearing Officer made a meaningful effort to locate and produce those witnesses (see, Matter of Salcedo v Coughlin, 197 AD2d 729 ). Finally, we reject the contention that petitioner was deprived of due process because he did not receive the employee assistant of his choice. Petitioner signed a waiver form indicating that he did not want employee assistance at his disciplinary hearing, thus expressly making a

p. 971

knowing and voluntary waiver of his right to assistance. Notwithstanding such waiver, an employee assistant was appointed at petitioner’s subsequent request and petitioner has failed to show prejudice resulting from the employee assistant’s performance (see, Matter of Jenkins v Coughlin, 190 AD2d 937 , lv denied 82 NY2d 651 ). (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Flaherty, J.) Present — Denman, P. J., Fallon, Wesley, Davis and Boehm, JJ.

Cases cited

Foster v. Coughlin 76 NY2d 964 N.Y. 1990-11-27 p. 970
Jenkins v. Coughlin 190 AD2d 937 N.Y. App. Div. 1993-02-11 p. 971