| Matter of Davis v Prack |
| 2009 NY Slip Op 05220 [63 AD3d 1457] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Samuel Davis, Appellant, v Albert Prack, asActing Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Appeal from an amended judgment of the Supreme Court (Rumsey, J.), entered October 2,2008 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.
While being walked back to his cell, petitioner pushed the correction officer who wasescorting him into a wall. He was physically restrained by the officer, but continued to struggleand initially refused the officer's directive to stop resisting. As a result, petitioner was charged ina misbehavior report with engaging in violent conduct, assaulting staff and refusing a directorder. About an hour after this incident, another correction officer was removing petitioner'swaist chain when petitioner struck the officer in the head with his handcuffs and broke theofficer's glasses. Petitioner was charged in a second misbehavior report with engaging in violentconduct and assaulting staff. Thereafter, a tier III disciplinary hearing encompassing bothmisbehavior reports was conducted. At the conclusion of the hearing, petitioner was found guiltyof all of the charges and the determination was later upheld on administrative appeal. Petitionercommenced this CPLR article 78 proceeding challenging the determination, which wasdismissed by Supreme Court. Petitioner now appeals.
Initially, we find no merit to petitioner's claim that he was denied adequate employee [*2]assistance because his assistant failed to provide him with certainrequested documentation prior to the hearing. The record reflects that the assistant failed toprovide such documentation because it was not available. Notably, the Hearing Officer obtainedthe documentation during the course of the proceeding and gave petitioner an opportunity toreview it, thereby curing any defect (seeMatter of Parkinson v Selsky, 49 AD3d 985, 986 [2008]; Matter of Harris v Selsky, 28 AD3d982, 983 [2006]). Petitioner's assertion that the hearing was not completed in a timelymanner is similarly unavailing. Excluding the date that the misbehavior reports were preparedfrom the limitations period of 7 NYCRR 251-5.1 (see Matter of Vasquez v Goord, 14 AD3d 903, 904 [2005]), anextension to complete the hearing was obtained within 14 days and the hearing was completedwithin the time period provided for in the extension (see 7 NYCRR 251-5.1 [b]; Matter of McKinley v Goord, 44AD3d 1164 [2007]; Matter ofJames v Goord, 28 AD3d 885, 886 [2006]). As to petitioner's claim that he wasimproperly denied the right to call certain witnesses, we note that he waived his right to call theauthor of one of the misbehavior reports by specifically withdrawing his request at the hearing(see Matter of Davis v Girdich, 20AD3d 788, 789 [2005], lv denied 5 NY3d 715 [2005]), and the testimony of hisassistant would have been redundant under the circumstances presented here (see Matter of Allah v Leclaire, 51AD3d 1173, 1174 [2008]). Petitioner's remaining contentions, to the extent they are properlybefore us, have been considered and are lacking in merit.
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Ordered that the amendedjudgment is affirmed, without costs.