| Matter of McAllister v Fischer |
| 2008 NY Slip Op 04243 [51 AD3d 1159] |
| May 8, 2008 |
| Appellate Division, Third Department |
| In the Matter of Charles McAllister, Petitioner, v Brian S. Fischer,as Commissioner of Correctional Services, Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichfound petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with providing unauthorized legal assistanceand lying. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was foundguilty of all charges and a penalty of 30 days of confinement in the special housing unit wasimposed. Following an unsuccessful administrative appeal, petitioner commenced this CPLRarticle 78 proceeding seeking to annul respondent's determination.
Contrary to petitioner's assertion, there is no requirement that the misbehavior report beprepared the same day of the incident; all that is required is that the report be prepared "as soonas practicable" (7 NYCRR 251-3.1 [a]; see Matter of Greene v Coombe, 242 AD2d 796,797 [1997], lv denied 91 NY2d 803 [1997]). As the underlying incident occurred onNovember 3, 2006 and the misbehavior report was prepared on November 5, 2006 and servedupon petitioner [*2]the following day, that standard plainly wasmet here. As to the timeliness of the disciplinary hearing, although it was not completed within14 days, a proper extension was granted and, in any event, "the regulatory time limits aredirectory, not mandatory" (Matter ofChaney v Selsky, 37 AD3d 983, 984 [2007] [internal quotation marks and citationsomitted]).
Turning to the merits, we agree with petitioner that there is insufficient evidence to supportthe finding that he provided unauthorized legal assistance. Petitioner testified withoutcontradiction that he was authorized to provide legal assistance for a particular inmate. Whilepetitioner indeed may have been in violation of another prison disciplinary rule by possessingthat inmate's legal papers outside the confines of the facility's law library, this Court previouslyhas held that mere possession of another inmate's legal papers, without more, is insufficient toestablish that a petitioner engaged in unauthorized legal assistance (see Matter of Hynes v Girdich, 10AD3d 747, 747-748 [2004], lv dismissed 4 NY3d 861 [2005]; Matter of Cliff vTedford, 262 AD2d 724, 724-725 [1999]; Matter of Hendrix v Williams, 256 AD2d1117 [1998]; compare Matter ofRodriguez v Goord, 40 AD3d 1324, 1325 [2007]). Accordingly, that portion ofrespondent's determination is annulled. We reach a similar conclusion regarding thedetermination that petitioner provided false and/or misleading information, as our review of therecord fails to disclose sufficient proof to sustain that charge (compare Matter of Royster v Goord, 26 AD3d 503, 504 [2006]).Inasmuch as petitioner has served his administrative penalty and there was no recommended lossof good time, there is no need to remit this matter for a redetermination of the penalty (see Matter of Johnson v Selsky, 2AD3d 958, 959 [2003]).
Petitioner's remaining contentions, including his assertion that the Hearing Officer wasbiased, have been examined and found to be lacking in merit.
Cardona, P.J., Carpinello, Rose and Stein, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted to that extent and respondent is directed to expunge allreferences to this matter from petitioner's institutional record.