| Matter of Sanders v Goord |
| 2008 NY Slip Op 00600 [47 AD3d 1183] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Sanders, Petitioner, v Glenn S. Goord, asCommissioner of Corretional Serices, 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 an attempted sexual act and an attemptto forcibly touch an employee after he tried to kiss a female staff member. Following a tier IIIdisciplinary hearing, he was found guilty of attempted forcible touching. That determination wasaffirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
The misbehavior report and the hearing testimony of the victim provide substantial evidenceto support the determination of guilt (seeMatter of Burgess v Goord, 45 AD3d 1144, 1145 [2007]; Matter of Goberdhan v Goord, 7 AD3d897, 897 [2004]). Although petitioner is correct that the disciplinary rule that prohibits theforcible touching of an employee does not expressly prohibit the attempt of such conduct(see 7 NYCRR 270.2 [B] [2] [ii]), "[i]nmates may be cited for attempts . . .whether or not the text of an actual rule contains such terms" (7 NYCRR 270.3 [b]) and, thus, hewas not improperly charged with attempted forcible touching. Finally, petitioner's claim that thehearing was not timely completed is unavailing inasmuch as the necessary extension wasobtained due to the unavailability of petitioner's requested witness and [*2]the hearing was completed prior to the expiration of that extension(see Matter of McKinley v Goord,40 AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]; Matter of Crosby v Selsky, 26 AD3d571, 572 [2006]).
Petitioner's remaining contentions, including hearing officer bias, have been reviewed anddetermined to be without merit.
Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.