| Matter of Rodriguez v Fischer |
| 2010 NY Slip Op 06677 [76 AD3d 1131] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jose Rodriguez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following a prison fight that resulted in the stabbing death of a fellow inmate, petitioner wasserved with a misbehavior report charging him with multiple prison disciplinary violations.During the course of a tier III disciplinary hearing, petitioner pleaded guilty to violent conduct,assault and fighting, but pleaded not guilty to possessing a weapon and creating a disturbance.Following the hearing, he was found guilty of all charges and that determination was affirmedadministratively. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. Initially, we note that inasmuch as petitioner pleaded guilty to violent conduct,assault and fighting during the hearing, he is precluded from challenging the determination withregard to those charges (see Matter ofKey v Fischer, 72 AD3d 1365, 1366 [2010]; Matter of McMoore v Bezio, 67 AD3d 1218 [2009]). With regardto the charges of possessing a weapon and creating a disturbance, we find the misbehavior report,hearing [*2]testimony, documentary evidence and signedconfessions given by petitioner to State Police investigators, and the reasonable inferences to bedrawn therefrom, provide substantial evidence to support the determination of guilt (see Matter of Wade v Artus, 59 AD3d793, 794 [2009], appeal dismissed 12 NY3d 872 [2009]; Matter of Gourdine v Goord, 18 AD3d1045, 1045-1046 [2005]). Notably, petitioner admitted in a signed statement that he stabbedthe victim in the chest with a shank during the altercation.
Turning to petitioner's contention that the hearing was not completed in a timely manner, therecord indicates that an extension was obtained within 14 days of the initial misbehavior reportand the hearing was then completed within the time provided (see Matter of Davis v Prack, 63 AD3d1457, 1458 [2009]). In any event, we note that the regulatory time limits for hearings are notmandatory, but directory, and petitioner has failed to demonstrate any prejudice by the allegeddelay (see Davidson v State of NewYork, 66 AD3d 1089, 1090 [2009]; Matter of Foster v Bezio, 62 AD3d 1222, 1223 [2009]). We haveexamined petitioner's remaining arguments and find them to be without merit.
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.