
    In the Matter of Darrell Walker, Petitioner, v Thomas A. Coughlin, III, as Commissioner of New York State Department of Correctional Services, Respondent.
    [609 NYS2d 471]
   Determination unanimously confirmed and petition dismissed. Memorandum: We reject the contention that respondent’s failure to provide petitioner with employee assistance at his disciplinary hearing violated respondent’s rules and regulations and deprived him of due process of law (cf., Matter of Burke v Coughlin, 97 AD2d 862). Petitioner waived his right to an employee assistant by refusing to sign an employee assistant selection form. The failure to select an assistant and proceed without one "was a circumstance of [petitioner’s] own creation and did not amount to a deprivation of due process” (Matter of Bates v Kelly, 152 AD2d 1009; see also, Matter of Peart v Kelly, 134 AD2d 843, lv denied 71 NY2d 801).

The determination of guilt on all charges contained in the two misbehavior reports is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.  