| Matter of McKinley v Goord |
| 2007 NY Slip Op 07944 [44 AD3d 1164] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Sincere McKinley, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, 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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with making threats after he commented thathe wanted to punch a correction officer who was handing out mail. He was found guilty of thecharge following a tier III disciplinary hearing. After the determination was affirmed onadministrative appeal, this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report, prepared by the correction sergeant who heardthe comment, provides substantial evidence supporting the determination of guilt (see Matter of Brown v Goord, 24AD3d 840, 840 [2005]; cf. Matterof Allen v Goord, 14 AD3d 961, 962 [2005]). Petitioner's assertion that he did notintend to threaten the officer presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v Goord, 25AD3d 852, 852 [2006]). His claim that the hearing was not completed in a timely manner isalso unavailing. [*2]Excluding the date that the misbehaviorreport was prepared (see Matter of Freeman v Selsky, 270 AD2d 547, 548 [2000]);Matter of Harris v Goord, 268 AD2d 933, 934 [2000]), an extension to complete thehearing was obtained within 14 days (see 7 NYCRR 251-5.1 [b]) and the hearing wascompleted within the time provided for in the extension. Under the circumstances presented,petitioner waived his right to claim that he was denied adequate employee assistance inasmuch ashe declined the assistant's initial attempt to meet with him and did not avail himself of theHearing Officer's offer to reassign the assistant or object at the hearing (see Matter of Starks v Goord, 2 AD3d1117, 1117 [2003]; Matter of Kross v Goord, 278 AD2d 637, 637 [2000]; cf.Matter of Avincola v Goord, 283 AD2d 748 [2001]). Petitioner's remaining contentions areeither unpreserved for our review or lacking in merit.
Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.