| Matter of Mack v Goord |
| 2008 NY Slip Op 02521 [49 AD3d 1045] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Anthony Mack, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered December 13, 2006in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Commissioner of Correctional Services whichfound petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with assaulting staff,engaging in violent conduct, disobeying a direct order and being out of place. The chargesstemmed from an incident wherein petitioner, who was noted to be out of place, refused acorrection officer's order to stop and, ultimately, struck the correction officer on the face with aclosed fist. Following a tier III disciplinary hearing, petitioner was found guilty as charged and apenalty of 180 days in the special housing unit and a corresponding loss of privileges and goodtime was imposed. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78raising, among other things, various procedural defects.[FN*]Supreme Court dismissed the petition, prompting this appeal.[*2]
We affirm. Petitioner initially contends that theunderlying disciplinary hearing was both commenced and completed in an untimely manner.Simply put, the time limits imposed by the relevant regulations are directory, not mandatory (see Matter of Chaney v Selsky, 37AD3d 983, 984 [2007]; Matter of Konigsberg v Selsky, 255 AD2d 702, 703 [1998]),and absent a showing of prejudice, which did not occur here, annulment is not warranted (see Matter of Bilbrew v Goord, 33AD3d 1107, 1108 [2006]). Moreover, our review of the record reveals valid reasons for eachof the extensions granted.
As to petitioner's claim that he was denied the right to present relevant documentaryevidence, we agree that in the absence of some indication that disclosing the injured correctionofficer's medical records would jeopardize institutional safety, the Hearing Officer's failure toprovide petitioner with such documents was error (see Matter of Cody v Goord, 17 AD3d 943, 944 [2005]; Matterof Moore v Goord, 255 AD2d 640, 641 [1998], lv denied 93 NY2d 802 [1999]). Thiserror, however, is harmless in view of the overwhelming evidence of petitioner's guilt and thefact that these records were not relied upon by the Hearing Officer in rendering his determination(see Matter of Abdul-Khaliq vGoord, 34 AD3d 872, 872-873 [2006]). Finally, we have reviewed petitioner's challengeto the Hearing Officer's designation and find it to be lacking in merit.
Peters, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Although petitioner initiallyraised a substantial evidence issue, Supreme Court granted petitioner's subsequent request towithdraw that portion of the petition.