| Matter of Edwards v Artis |
| 2008 NY Slip Op 00592 [47 AD3d 1175] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Christopher D. Edwards, Petitioner, v Dale Artis,as Superintendent of Clinton Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of making athreat in violation of the prison disciplinary rules. The determination was affirmed onadministrative appeal and this CPLR article 78 proceeding ensued.[FN*]
We confirm. Initially, petitioner's claim that the hearing was not completed in a timely [*2]manner is unavailing inasmuch as extensions to complete thehearing were sought and granted (seeMatter of McKinley v Goord, 44 AD3d 1164, 1164 [2007]; Matter of Davis v Goord, 34 AD3d1027, 1028 [2006]). In any event, absent a showing of substantial prejudice as a result of thedelay, the regulatory time limits are construed as discretionary, rather than mandatory (see Matter of Van Gorder v New YorkState Dept. of Correctional Servs., 42 AD3d 834, 835 [2007]; Matter of Frazier v Artus, 40 AD3d1288, 1288 [2007]). Finally, the Hearing Officer's denial of petitioner's requested witnesseswas not improper because those individuals did not witness the incident and, therefore, could notprovide testimony relevant to the charge (see Matter of Parkinson v Selsky, 45 AD3d 1079, 1080 [2007]; Matter of Hannah v Burge, 43 AD3d1234 [2007]).
Petitioner's remaining contentions have been reviewed and determined to be without merit.
Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: While petitioner arguably raisedthe issue of substantial evidence in his petition and the proceeding was transferred on that basis,petitioner did not raise this claim in his brief and, thus, it has been abandoned (see Matter of Rolon v Goord, 30 AD3d946, 947 n [2006]).