| Matter of Austin v Fischer |
| 2010 NY Slip Op 00745 [70 AD3d 1074] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kenrick Austin, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following an altercation with several correction officers, during which petitioner allegedlybroke a broomstick over his knee and threatened an officer with the jagged remains, then laterpunched that officer in the jaw, petitioner was served with a misbehavior report charging himwith assault on staff, possession of a weapon and harassment. A tier III disciplinary proceedingensued, after which petitioner was found guilty of all charges. That determination was affirmedon administrative review and petitioner thereafter commenced this CPLR article 78proceeding.[FN*][*2]
We confirm. Petitioner contends that the Hearing Officererred by taking the testimony of witnesses without informing him and, further, denying himaccess to such testimony. Even assuming that petitioner's contention was properly preserved forour review, the Hearing Officer was not required to inform petitioner prior to conducting theinterviews, inasmuch as he apprised petitioner before the hearing concluded that the testimonyhad been taken and the reason for its confidentiality (see Matter of Cowan v Fischer, 64 AD3d 839, 839-840 [2009];Matter of Green v Coombe, 234 AD2d 756, 757 [1996]). We also reject petitioner'scontention that respondent's failure to issue an administrative determination within the statutorilyprescribed 60-day period requires annulment, inasmuch as that time limitation is directory, notmandatory, and petitioner failed to demonstrate that the short delay caused substantial prejudiceto his case (see Matter of Goberdhan vGoord, 7 AD3d 897, 898 [2004]; Matter of Ortiz v Goord, 302 AD2d 830,830-831 [2003]).
We have examined petitioner's remaining contentions and find them to be either unpreservedor without merit.
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: Although Supreme Courtproperly transferred the proceeding to this Court because petitioner raised the issue of substantialevidence in his petition, that claim has been abandoned inasmuch as petitioner failed to raise it inhis brief (see Matter of Polite vGoord, 49 AD3d 944, 944 n [2008]; Matter of Tafari v Selsky, 32 AD3d 1055, 1056 n [2006], lvdenied 7 NY3d 717 [2006]).