| Matter of Foster v Bezio |
| 2009 NY Slip Op 04143 [62 AD3d 1222] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Foster, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
Following an altercation with another inmate, petitioner admitted to violations for fightingand exhibiting violent conduct. A tier III disciplinary hearing was subsequently held, after whichpetitioner was found guilty of the additional charges of refusing a direct order, causing adisturbance, assaulting an inmate and possessing a weapon. That determination was affirmedupon administrative appeal and this CPLR article 78 proceeding ensued.
Initially, the Attorney General concedes and we agree that there was insufficient evidence tosustain the charges that petitioner assaulted an inmate and possessed a weapon. As such, theunderlying determination must be annulled to that extent. However, since petitioner has alreadyserved the penalty imposed, and no loss of good time resulted, there is no need for a remittal fora redetermination of the penalty (seeMatter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Alicea v Smith, 50 AD3d1404, 1404-1405 [2008]).
Turning to petitioner's contention that the hearing was not completed in a timely manner, wenote that, although there was a delay between the expiration of several valid [*2]extensions and subsequent requests for further extensions, theregulatory time limits for hearings are directory, not mandatory (see Matter of Lara v Dubray, 52 AD3d1143, 1143 [2008]; Matter ofMcAllister v Fischer, 51 AD3d 1159, 1160 [2008]). In any event, petitioner has madeno showing that he was prejudiced by these delays and, to the contrary, the delay on at least oneoccasion involved the Hearing Officer's attempts to interview witnesses that petitioner requested(see Matter of Winfield vCarpenter, 51 AD3d 1167, 1167 [2008]; Matter of Freeman v Leclaire, 50 AD3d 1329, 1329 [2008], lvdenied 11 NY3d 705 [2008]). Finally, there is no support in the record for petitioner'sassertion that the determination was the result of any purported bias on the part of the HearingOfficer (see Matter of Purcell v McKoy, 54 AD3d at 1114; Matter of Freeman vLeclaire, 50 AD3d at 1329). Petitioner's remaining contentions have been rendered academicby the annulment of the assault and weapons charges.
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof assaulting an inmate and possessing a weapon; petition granted to that extent and theCommissioner of Correctional Services is directed to expunge all references thereto frompetitioner's institutional record; and, as so modified, confirmed.