Decided and Entered: July 17, 2003 93206 ________________________________ In the Matter of WARREN SMITH, Petitioner, v GLENN S. GOORD, as Commissioner of Correctional Services, Respondent. ________________________________ Calendar Date: June 9, 2003 Before: Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ. __________ Warren Smith, Comstock, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules that prohibit an inmate from participating in a demonstration, disobeying a direct order and violating movement regulations. The charges stem from an incident in the mess hall where 52 inmates stopped working, sat in the mess hall and refused an order to return to work. Notwithstanding the number of inmates involved in the incident, we reject petitioner’s assertion that the misbehavior report was insufficient. The misbehavior report identified petitioner by name and indicated his participation in the demonstration, as well as his failure to return to work (see 7 NYCRR 251-3.1 [c] [4]; see also Matter of Witherspoon v Goord, 284 AD2d 681 [2001]). The misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Bernier v Mann, 166 AD2d 798 [1990]). Although petitioner requested on his assistant form that he wanted to view a videotape of the incident, he did not request the videotape during the hearing until after the disposition had been read. Under these circumstances, we find that petitioner was not denied the right to present evidence (see Matter of Hodge v Goord, 280 AD2d 767 [2001]). Finally, petitioner has demonstrated no prejudice resulting from any alleged inadequate employee assistance (see Matter of Johnson v Coombe, 228 AD2d 755 [1996]). Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court
