| Matter of Martinez v Fischer |
| 2011 NY Slip Op 01761 [82 AD3d 1380] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of David Martinez, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 found petitionerguilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was being escorted to a new cell when, apparently dissatisfiedwith the fact that he would be double-bunked, he turned and attempted to strike one of theaccompanying correction officers. In the fracas that ensued, petitioner bit, kicked and spit bloodon various officers and refused to stop struggling despite numerous direct orders to do so. As aresult, he was served with a misbehavior report charging him with assaulting staff, interferingwith employees, refusing a direct order, creating a disturbance, violating movement regulationsand refusing a double cell assignment. Thereafter, petitioner was served with a secondmisbehavior report charging him with making threats when he apparently stated upon returningto his cell that he would assault any officers who tried to approach him. Both reports were thesubject of a single tier III disciplinary hearing. Petitioner pleaded guilty to refusing a direct orderand he was found guilty of all of the other charges. That determination was affirmed onadministrative appeal with a downward modification of the penalty. This CPLR article 78proceeding ensued.[*2]
We confirm. Initially, we note that petitioner is precludedfrom challenging the finding of guilt with regard to refusing a direct order inasmuch as hepleaded guilty to such charge at the hearing (see Matter of Rodriguez v Fischer, 76 AD3d 1131, 1131-1132[2010]; Matter of Key v Fischer, 72AD3d 1365, 1366 [2010]).[FN*]Regarding the remaining charges, petitioner first contends that he received inadequate employeeassistance, inasmuch as his assistant failed to provide the names and locations of his requestedwitnesses, as well as the documentation he requested. Initially, we note that the assistance formdoes not indicate that petitioner requested any potential witnesses to be interviewed. With regardto documentation, the record also shows that petitioner received the use of force report herequested. On the other hand, we agree that petitioner should have had access to the photographsand medical reports of the injured correction officers in the absence of any indication thatdisclosure would jeopardize institutional safety (see Matter of Malik v Bezio, 76 AD3d 1128, 1128 [2010]; Matter of Jones v Fischer, 69 AD3d1065, 1066 [2010]). However, in light of the overwhelming evidence againstpetitioner—consisting of the misbehavior report, testimony of one of the officers involvedin the incident, voluminous documentary evidence and a videotape of the events—we findthe error to be harmless (see Matter of Malik v Bezio, 76 AD3d at 1128-1129). As such,we cannot say that any defect in the assistance provided to petitioner was prejudicial (see Matter of Cornwall v Fischer, 74AD3d 1507, 1508-1509 [2010]).
Likewise, we reject petitioner's contention that the hearing was not completed in a timelyfashion where the record demonstrates that appropriate extensions were requested and receivedand the hearing completed within the time provided (see Matter of Rodriguez v Fischer,76 AD3d at 1132; Matter of Reese vBezio, 75 AD3d 1029, 1030 [2010]). In any event, the regulatory time limits forhearings are discretionary, not mandatory, and there has been no showing by petitioner that heexperienced any prejudice by the alleged delay (see Matter of Rodriguez v Fischer, 76AD3d at 1132; Matter of Foster vBezio, 62 AD3d 1222, 1223 [2009]).
Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Because the petition raised aquestion of substantial evidence, the proceeding was properly transferred to this Court. However,petitioner has abandoned that argument by his failure to address it in his brief (see Matter of Williams v Fischer, 73AD3d 1364, 1364 n [2010]).