| Matter of Freeman v Leclaire |
| 2008 NY Slip Op 03346 [50 AD3d 1329] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Rodney Freeman, Petitioner, v Lucien J. LeclaireJr., as Commissioner 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.
Petitioner, an inmate, was charged in a misbehavior report with flooding his prison cell andrefusing a direct order. A tier III disciplinary hearing ensued, at the conclusion of whichpetitioner was found guilty of both charges. That determination was affirmed upon administrativeappeal, prompting petitioner to commence this CPLR article 78 proceeding.
Although petitioner contends that the charge of flooding his prison cell was unsubstantiated,we disagree. The misbehavior report, together with statements made by petitioner at the hearing,provide substantial evidence to support the determination of guilt (see Matter of Barham v Goord, 42AD3d 607, 608 [2007]). As for petitioner's assertion that the Hearing Officer was biased,there is no indication that the determination was the result of any purported bias (see Matter of Martinez v Goord, 48AD3d 851 [2008]). Regarding petitioner's claim that the hearing was untimely because itwas commenced on the eighth day following the incident (see 7 NYCRR 251-5.1 [a]), wenote that the regulatory time limits are directory, not mandatory, and there has been nodemonstration that petitioner suffered any prejudice as a result [*2]of the one-day delay (see Matter of Chaney v Selsky, 35 AD3d 1109, 1110 [2006]).Petitioner's remaining claims, to the extent not specifically addressed herein, have been examinedand found to be unavailing.
Cardona, P.J., Peters, Spain, Rose and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.