
    In the Matter of Christopher Moore, Respondent, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Program, Appellant.
    [694 NYS2d 818]
   Peters, J.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 29, 1998 in Clinton County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of failure to comply with search and frisk procedure, assault on staff, violent conduct and possession of contraband that may be classified as a weapon. Upon administrative appeal, the tier III disposition was affirmed and petitioner commenced this CPLR article 78 proceeding to review the determination. Supreme Court granted the petition and directed a new hearing with petitioner’s assistant present to aid him in his defense. Respondent appeals.

Petitioner, who is functionally illiterate with an IQ of 68, challenged the determination solely on the ground that his constitutional rights were violated by the Hearing Officer’s failure to require the presence of petitioner’s assistant at the hearing. Supreme Court rejected respondent’s contention that, by failing to request assistance at the hearing, petitioner waived any objection. The court concluded that, based upon petitioner’s low IQ, the Hearing Officer abused his discretion under 7 NYCRR 251-4.2, which authorizes a Hearing Officer to require the presence of an inmate’s assistant at the hearing.

Supreme Court erred in focusing exclusively on petitioner’s low IQ. In the criminal context, unless the degree of retardation is so great as to render the accused completely incapable of understanding the meaning and effect of his confession, deficient intelligence is only one factor in the whole totality of circumstances to be considered in determining whether a confession was knowing and voluntary (see, People v Williams, 62 NY2d 285, 289). Inasmuch as “inmates at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant” (Matter of Hillard v Coughlin, 187 AD2d 136, 139, lv denied 82 NY2d 651), petitioner’s entitlement to assistance at the hearing should not be determined by a stricter standard than would be applicable to the admissibility of his confession in a criminal action. Here, as in the case where an inmate claims that he was deprived of the right to have a translator present, the issue is whether a review of the record as a whole demonstrates that, despite the absence of the assistant, petitioner was able to understand and knowledgeably participate in the disciplinary hearing (see, Matter of Santiago v Goord, 253 AD2d 970; Matter of Robles v Coombe, 238 AD2d 628).

The record establishes that petitioner received meaningful émployee assistance prior to the hearing and petitioner does not claim otherwise. The Hearing Officer was aware of petitioner’s functional illiteracy and tailored the hearing to accommodate the deficiencies. Petitioner stated that he understood the nature of the charges and his conduct at the hearing confirms not only his understanding of the nature of the charges but also his ability to formulate and effectively advocate his defense. For example, petitioner claimed that he began to struggle when his testicles were grabbed by a correction officer during a frisk and that the officer beat him and planted a razor blade on him in retaliation. In support of this latter defense, petitioner pointed out that he had passed through a metal detector shortly before the incident and raised the question of how he could have a razor blade and pass through the metal detector without setting it off. In addition, after the Hearing Officer refused to call a witness, petitioner convinced the Hearing Officer that the witness could provide relevant testimony and the witness was produced. Similarly, petitioner’s arguments prompted the Hearing Officer to call a correction officer to provide additional detail.

The record demonstrates that petitioner understood and knowledgeably participated in the disciplinary hearing and, therefore, the absence of an assistant at the hearing provided no basis for Supreme Court to disturb the determination (see, Matter of Alvarez v Goord, 243 AD2d 973, 974).

Cardona, P. J., Mikoll, Yesawich Jr. and Mugglin, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination confirmed and petition dismissed.  