Matter of Applewhite v Goord

2007 NY Slip Op 09141 [45 AD3d 1112]

November 21, 2007

Appellate Division, Third Department

As corrected through Wednesday, January 16, 2008

In the Matter of Chris Applewhite, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents.

—[*1]Chris Applewhite, Pine City, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered January 4, 2006 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.

Alleging various procedural errors only, petitioner challenges a determination finding himguilty of violating the prison disciplinary rules that prohibit violent conduct, interference withprison employees, refusing a direct order and threats. Supreme Court dismissed the petition andpetitioner appeals.

Upon a review of the record, we find petitioner's procedural challenges to be without merit.Because petitioner was already confined to the special housing unit at the time of the incident,the hearing was not required to be commenced within seven days (see 7 NYCRR 251-5.1[a]; Matter of Striplin v Selsky, 28AD3d 969 [2006]). In any event, "[a]bsent a showing that substantial prejudice resulted fromthe delay, the regulatory time limits are construed to be [*2]directory rather than mandatory" (Matter of Van Gorder v New York StateDept. of Correctional Servs., 42 AD3d 834, 835 [2007]). We are not persuaded thatpetitioner was improperly denied the right to present videotape evidence of the incident as therecord indicates that no such videotape existed (see Matter of Cargill v Goord, 29 AD3d 1255 [2006]). Contrary topetitioner's contention, there is no impropriety with the appointment of an institutional steward toact as the hearing officer (see 7 NYCRR 254.1; Matter of Wright v Goord, 19 AD3d 855 [2005], lv denied5 NY3d 711 [2005]). Petitioner's remaining contentions, including his claim of hearing officerbias, have been reviewed and determined to be without merit.

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.