| Matter of Mackie v Goord |
| 2008 NY Slip Op 01898 [49 AD3d 952] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Michael Mackie, Petitioner, v Glenn Goord, asCommissioner of Correctional Services, Respondent. |
—[*1]
Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein 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.
Pursuant to an investigation, facility personnel approached petitioner's spouse during ascheduled visitation, whereupon she surrendered 10 latex glove tips containing approximately 30grams of "a green vegetable material which she admitted was marihuana." As a result, petitionerwas charged in a misbehavior report with conspiring to introduce drugs and soliciting others tosmuggle drugs into the facility. Following a tier III disciplinary hearing, petitioner was foundguilty and a penalty of 12 months in the special housing unit and a corresponding loss ofprivileges was imposed. Petitioner's administrative appeal proved unsuccessful, prompting himto commence this CPLR article 78 proceeding to challenge respondent's determination.
Preliminarily, we reject petitioner's assertion that the hearing was not completed in a timelyfashion, as the record reflects that valid extensions were obtained to accommodate, among otherthings, petitioner's request for certain witnesses (see Matter of Farrell v Selsky, 32 AD3d 1103, 1104 [2006]).Moreover, the regulatory time limits are directory, not mandatory, and we reject petitioner'scontention that he was prejudiced by the resulting delay (see Matter of Chaney v Selsky, 37 AD3d 983, 984 [2007]).[*2]
As for petitioner's claim that the Hearing Officer erred infailing to provide him with a copy of his spouse's sworn statement, we need note only that thetext of that statement was read into the record, petitioner was afforded an opportunity to reviewthe statement and he used the contents thereof to both raise various objections and question hisspouse. Therefore, we are unable to discern any prejudice to petitioner.
With regard to the omission of certain NIK testing documents, where, as here, an inmate ischarged with smuggling and conspiracy, "the documentation requirements of 7 NYCRR 1010.5do not apply" (Matter of Lovett vGoord, 26 AD3d 563, 564 [2006]) and, in any event, petitioner's spouse admitted thatthe substance was marihuana. Finally, the misbehavior report, the testimony adduced at thehearing, the transcript of a three-way telephone conversation between petitioner, his sister and hiswife and the confidential information contained in the record provide substantial evidence ofpetitioner's guilt (see id. at 564; Matter of Johnson v Goord, 7 AD3d 863, 863-864 [2004]).
Cardona, P.J., Carpinello, Rose, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.