MATTER OF DAWES v. LEONARDO

Petitioner was given two opportunities to select an employee assistant and on both occasions refused to sign the form requesting such assistance. Thus, his decision to proceed without assistance was a circumstance of his own creation and did not amount to a deprivation of due process (see, Matter of Peart v. Kelly, 134 A.D.2d 843, lv. denied 71 N.Y.2d 801). Petitioner also failed to properly preserve for judicial review the question of whether the Hearing Officer was partial (see, Matter of Samuels v. Kelly, 143 A.D.2d 506, lv. denied 73 N.Y.2d 707). In any event, a review of the record reveals no basis for this claim (see, Matter of Grant v. Senkowski, 146 A.D.2d 948). Furthermore, the testimony of the correction officer and the misbehavior report that he filed provide substantial evidence to support the determination of guilt (see, Matter of Bernacet v. Coughlin, 145 A.D.2d 802, lv. denied 74 N.Y.2d 603).

Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.