Garcia v. Coughlin

—Appeal from a judgment of the Supreme Court (Lewis, J.), entered January 3, 1994 in Clinton County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

The determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating prison *801disciplinary rules prohibiting assault on inmates and the refusal of direct orders was annulled by Supreme Court based upon the denial of petitioner’s right to attend the Superintendent’s hearing. Initially, we find that the misbehavior report written by a correction officer who witnessed the event in issue, as well as that officer’s testimony corroborating the report, constitute substantial evidence of petitioner’s guilt. Further, given that the denial of petitioner’s right to be present at the hearing can be adequately remedied at a new hearing, we find no merit to petitioner’s contention that remittal is an inappropriate remedy in this case. We have considered petitioner’s other contentions and find them to be without merit.

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