| Matter of Thompson v Votraw |
| 2009 NY Slip Op 06475 [65 AD3d 1403] |
| September 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Terry Thompson, Petitioner, v Tim Votraw, asActing Director of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
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 and another inmate were involved in a physical altercation during which the otherinmate allegedly attacked petitioner with a wooden handle and petitioner retaliated by strikingthe inmate with the wooden handle as well as with a metal bar. Following this incident,petitioner was charged in a misbehavior report with fighting, possessing a weapon and assaultinganother inmate. The next day, after receiving a tip from a confidential informant that petitionerhad used a 12-inch metal bar to assault the other inmate, a correction officer searched petitioner'scell and found a piece of metal fitting that description on the ground outside of petitioner's cellwindow. As a result, petitioner was charged in a second misbehavior report with possessing aweapon, namely, the metal bar. A tier III disciplinary hearing on both misbehavior reports wassubsequently conducted. At the conclusion of the hearing, petitioner was found guilty ofassaulting an inmate and possessing the metal bar, but not guilty of the other charges. Thedetermination was affirmed on administrative appeal and this CPLR article 78 proceedingensued.[*2]
We confirm. The misbehavior reports, documentaryevidence and testimony adduced at the hearing support the determination finding petitionerguilty of the charges at issue (seeMatter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]). Wefind no merit to petitioner's assertion that he was improperly denied the right to call twowitnesses at the hearing inasmuch as they did not have personal knowledge of the pertinent factsunderlying the incident and their testimony would have been irrelevant to the charges (see Matter of Lee v Goord, 36 AD3d1176, 1177 [2007]; Matter of Mossv Goord, 36 AD3d 977, 978 [2007]). Contrary to petitioner's claim, the hearing was notcompleted in an untimely manner. The record discloses that valid extensions to complete thehearing beyond the 14-day time period set forth in 7 NYCRR 251-5.1 (b) were obtained (see Matter of Sanders v Goord, 47AD3d 987, 988 [2008]), and that the hearing was actually concluded before the date setforth in the last extension. The fact that some of the extension requests were not made before thehour of the expiration of the previous request does not render them invalid (see Matter of Porter v Goord, 6 AD3d1013, 1014 [2004], lv denied 3 NY3d 602 [2004]). Lastly, the record does notsupport petitioner's claim that the Hearing Officer was biased and there is no indication that thedetermination at issue flowed from any alleged bias (see Matter of Barclay v Goord, 23 AD3d 862, 863 [2005], lvdenied 6 NY3d 705, 710 [2006]). Therefore, we find no reason to disturb the determinationof guilt.
Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.