| Matter of Burgess v Selsky |
| 2008 NY Slip Op 03361 [50 AD3d 1347] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of James Burgess, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with engaging in lewdconduct and refusing a direct order. Following a tier III disciplinary hearing, petitioner was foundguilty of both charges. That determination was administratively affirmed and this CPLR article78 proceeding seeking annulment ensued.
As an initial matter, we note that Supreme Court improperly transferred this proceeding tothis Court on substantial evidence grounds inasmuch as the petition appears to assert onlyprocedural issues (see Matter of Vaughn v Selsky, 276 AD2d 958, 958 [2000], appealdismissed 96 NY2d 753 [2001]). That notwithstanding, we will retain jurisdiction andaddress the merits of the petition in the interest of judicial economy (see id.).
Petitioner is not entitled to annulment based upon the inadequacy of his employee assistant.The assistant should have attempted to interview the witnesses that petitioner [*2]requested and reported back with the results of those efforts(see 7 NYCRR 251-4.2). Despite the assistant's failure to comply with this duty, therequested inmate witness testified at the hearing that he had no relevant knowledge and theemployee requested by petitioner was not a witness to the event and his testimony was excludedas irrelevant. Finally, petitioner received a copy of the document that was relevant to theoccurrence. As petitioner did not show any prejudice resulting from his assistant's failure tocomply with the regulation, his argument does not require reversal (see Matter of Abif vStinson, 231 AD2d 804, 806 [1996]; Matter of Serrano v Coughlin, 152 AD2d 790,792 [1989]).
The record does not support petitioner's contention that the Hearing Officer failed to conducta fair and impartial hearing, nor that the determination flowed from any purported bias (see Matter of Parkinson v Selsky, 45AD3d 1079, 1080 [2007]). Petitioner's remaining claims have been examined and found tobe without merit.
Cardona, P.J., Mercure, Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.