| Matter of Collins v Bellnier |
| 2010 NY Slip Op 09457 [79 AD3d 1520] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Junior Collins, Petitioner, v Joseph Bellnier, asSuperintendent of Upstate Correctional Facility, 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 Supreme Court,entered in Franklin County) to review a determination of respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
Petitioner, a prison inmate, was observed by a correction officer removing something from hispocket and placing it in his mouth. The officer removed petitioner from his cell and gave him an order tospit out the object, but petitioner did not comply. Following a tier II disciplinary hearing, petitioner wasfound guilty of refusing a direct order and interfering with an employee, and that determination wasaffirmed on administrative appeal. This CPLR article 78 proceeding ensued.
The detailed misbehavior report, authored by the correction officer involved in the incident, issufficient, by itself, to provide substantial evidence of petitioner's guilt with regard to the charge ofrefusing a direct order (see Matter of Rivera vPilon, 59 AD3d 761, 762 [2009]; Matter of Igartua v Rivera, 58 AD3d 1046[2009]). Notably, petitioner declined to call the report's author as a witness or to view a videotape ofthe incident when offered the opportunity to do so. Furthermore, his insistence [*2]that he never put anything in his mouth and, therefore, had nothing to spitout raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Roussopoulas v Cunningham,76 AD3d 730 [2010]; Matter of Lynchv Fischer, 76 AD3d 734 [2010]).
With respect to the charge of interfering with an employee, however, we reach a differentconclusion. In our view, there is insufficient evidence from the misbehavior report alone to establish thatpetitioner "physically or verbally obstruct[ed] or interfere[d] with an employee at any time" (7 NYCRR270.2 [B] [8] [i]; see Matter of Tevault vFischer, 61 AD3d 1161, 1162-1163 [2009]). As such, that part of the determination must beannulled. Because there was no recommended loss of good time, however, we need not remit thematter for a redetermination of the penalty (see Matter of Owens v Fischer, 75 AD3d 1020, 1021 [2010]).
Finally, petitioner's contention that the hearing was not timely completed is without merit, inasmuchas the regulatory time limits for hearings are directory, not mandatory, and petitioner made no showingthat he was prejudiced by the slight delay in requesting the otherwise valid extension (see Matter of Foster v Bezio, 62 AD3d1222, 1223 [2009]).
Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of interfering with anemployee and imposed a penalty; petition granted to that extent and respondent is directed to expungeall references thereto from petitioner's institutional record; and, as so modified, confirmed.