In the Matter of Brian Jacques v. Thomas Coughlin, as Commissioner of Correctional Services

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme *930Court, entered in Ulster County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty after a Superintendent’s hearing of violating a prison disciplinary rule prohibiting sexual acts among inmates. The misbehavior report, in conjunction with the testimony of the correction officer who authored the report and witnessed the incident, established that petitioner and another inmate were observed engaging in a sexual act and provides substantial evidence to support the determination of guilt. Further, given that the record reveals no request at the hearing for the documentary evidence described by petitioner in his petition, we reject his contention that he was denied such evidence. We also find that, having failed to raise any issue of ineffective employee assistance at the hearing, petitioner has waived that issue and, in any event, the record establishes that adequate assistance was rendered. Finally, we find no evidence that any alleged bias on the part of the Hearing Officer affected the outcome of the hearing.

Cardona, P. J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.