Dawes v. Coughlin

— Appeal from a judgment of the Supreme Court (Prior Jr., J.), entered September 18, 1990 in Albany 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.

Although petitioner argues to the contrary, the decision to exclude him from his disciplinary hearing was not arbitrary or capricious (see, Matter of Cortez v Coughlin, 115 AD2d 841, affd 67 NY2d 907). The Hearing Officer determined that the denial was required in order to promote “institutional safety or correctional goals” (7 NYCRR 254.6 [b]) and the record contains factual support for this determination (cf., Matter of Boodro v Coughlin, 142 AD2d 820). With respect to the issue of employee assistance, petitioner was given the opportunity *416to select such an assistant, failed to do so, and also refused to sign the form requesting such assistance. Therefore, his decision to proceed without an assistant was a circumstance of his own creation which did not amount to a deprivation of due process (see, Matter of Peart v Kelly, 134 AD2d 843, lv denied 71 NY2d 801). Petitioner’s remaining contentions have been considered and rejected as lacking in merit.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the judgment is affirmed, without costs.