| Matter of Ifill v Fischer |
| 2010 NY Slip Op 03203 [72 AD3d 1367] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Richard Sunday Ifill, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, who is confined to a wheelchair, refused to comply with a correction officer'sdirective to put his hands through the hatch in his cell door to allow the officer to remove hishandcuffs. After he became belligerent, it was necessary for correction officers to use force toregain control of him. As a result of this incident, petitioner was charged in a misbehavior reportwith refusing a direct order and interfering with an employee. Following a tier III disciplinaryhearing, petitioner was found guilty of the charges. The determination was later affirmed onadministrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Initially, we find no merit to petitioner's claim that the disciplinary hearing wasnot conducted in a timely manner.[FN*]The record discloses that although more than 14 days [*2]elapsedbetween the writing of the misbehavior report and the conclusion of the hearing (see 7NYCRR 251-5.1 [b]), appropriate extensions were obtained and the hearing was completedwithin the alloted time frame (seeMatter of Thompson v Votraw, 65 AD3d 1403, 1404 [2009]; Matter of Harrison v Votraw, 56 AD3d868 [2008]). Additionally, petitioner's claim of hearing officer bias has not been preservedfor our review due to his failure to raise it in his administrative appeal (see Matter of Quinones v Fischer, 55AD3d 1200, 1200-1201 [2008]; Matter of Britt v Fischer, 54 AD3d 1087 [2008]). His remainingcontentions are without merit and, consequently, we find no reason to disturb the determinationof guilt.
Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: We note that, althoughpetitioner arguably raised a question of substantial evidence in his verified petition, whichresulted in the transfer of the proceeding to this Court, he has abandoned this issue by not raisingit in his brief (see Matter of Perez vFischer, 62 AD3d 1104, 1105 n [2009]; Matter of Baxton v Goord, 51 AD3d 1230 n [2008]).