| Matter of Sanders v Goord |
| 2008 NY Slip Op 00020 [47 AD3d 987] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Sanders, 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 certain prison disciplinary rules.
During an interview conducted as part of an official investigation, petitioner represented thathe had sexual relations with a female staff member of the correctional facility where he wasincarcerated, but he later recanted this statement. As a result, on June 15, 2006, he was chargedin a misbehavior report with interfering with an employee and making false statements. At theconclusion of the ensuing tier III disciplinary hearing on July 14, 2006, which was completedfollowing three extensions, petitioner was found guilty of the charges. The determination wasaffirmed on administrative appeal and petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of its author, providesubstantial evidence supporting the determination of guilt (see Matter of Pulliam v Whitmore, 24 AD3d 921, 922 [2005]).Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Roye v Goord, 34 AD3d1134 [2006]). Moreover, we find no merit to petitioner's contention that the hearing was notcompleted in a timely manner because valid extensions were not obtained. The first extensionwas granted on June 29, 2006 [*2]due to petitioner's apparenttransfer to a psychiatric facility and provided that the hearing was to be concluded within sevendays of his return. Even if, as petitioner contends, he was returned to the correctional facility onJune 29, 2006, the second extension was obtained on July 5, 2006, within the seven-day periodspecified in the first extension, and extended the hearing completion date to July 13, 2006. Thethird extension was obtained on July 13, 2006 and extended the completion date to July 14, 2006.The hearing was completed on July 14, 2006 and, while this was more than 14 days after thewriting of the misbehavior report (see 7 NYCRR 251-5.1 [b]), it was nevertheless timelygiven that valid extensions were obtained and the hearing was completed within the timeprovided. "In any event, the time requirement set forth in 7 NYCRR 251-5.1 (b) is merelydirectory, and not mandatory, and there has been no showing by petitioner that he suffered anyprejudice as a result of the delay" (Matter of Crosby v Selsky, 26 AD3d 571, 572 [2006] [citationomitted]).
Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.