November 12, 1992
Appeal from the Supreme Court, Ulster County.
Initially, we find that petitioner was not denied meaningful employee assistance in preparing his case (see, Matter of Serrano v Coughlin, 152 A.D.2d 790). To succeed on such a claim, petitioner was required to establish that prejudice resulted from any failure of the assistant to comply with his duties. This petitioner failed to do (see, Matter of Cioci v Coughlin, 169 A.D.2d 895; Matter of Serrano v Coughlin, supra). We also reject petitioner's claim that the Hearing Officer was not impartial insofar as there is no support in the record for the claim of bias or any proof that the outcome of the hearing flowed from the alleged bias (see, Matter of Nieves v Coughlin, 157 A.D.2d 943).
Turning next to petitioner's contention that his right to call witnesses was violated due to the Hearing Officer's failure to take testimony from the alleged victim, we first note that contrary to respondents' claim, petitioner did not acquiesce in the victim's failure to testify (see, Matter of Williams v Coughlin, 145 A.D.2d 771; cf., Matter of McLean v LeFevre, 142 A.D.2d 911). Nevertheless, in our view the Hearing Officer made the "meaningful effort" required in trying to obtain the requested testimony (Matter of Silva v Scully, 138 A.D.2d 717, 719; cf., Matter of Barnes v LeFevre, 69 N.Y.2d 649). The Hearing Officer personally contacted the victim, who refused to testify. The Hearing Officer then specifically asked the victim to provide a reason for the refusal but the victim refused to provide further information. Under the circumstances, petitioner's right to call witnesses cannot be said to have been violated (cf., Matter of Hylton v Lord, 148 A.D.2d 453; Matter of Williams v Coughlin, supra; Matter of Silva v Scully, supra).
Levine, J.P., Mercure, Mahoney, Casey and Harvey, JJ., concur. Adjudged that that the determination is confirmed, without costs, and petition dismissed.