| Matter of Hernandez v Fischer |
| 2010 NY Slip Op 09592 [79 AD3d 1544] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Juan Hernandez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Ulster County) to review (1) two determinations finding petitioner guilty ofviolating certain prison disciplinary rules and (2) a determination denying his grievance.
On April 30, 2009, petitioner was being prepared for transport from Eastern Correctional Facilityin Ulster County to a medical facility. He was wearing a hard cast on his left forearm and, when acorrection officer attempted to apply a boot cuff to it, petitioner complained that such device should notbe used, pulled his arm away and refused to comply with the officer's directive to be transported. As aresult, he was charged in a misbehavior report with refusing a direct order and interfering with anemployee. Following a tier II disciplinary hearing, he was found guilty of the charges and thedetermination was upheld on administrative appeal.
As the result of this incident, petitioner filed a grievance claiming that correction officials violated the"Milburn decree" by the manner in which they attempted to restrain [*2]petitioner for transport to the medical appointment.[FN*]The relief requested was referral to an orthopedic surgeon for purported injuries to petitioner's left wristand expungement of the disciplinary charges. The Central Office Review Committee ultimately deniedpetitioner's grievance.
Thereafter, petitioner was charged in a second misbehavior report with additional disciplinary ruleviolations after he aggressively questioned a civilian vocational instructor about files that were missingfrom certain computers and ignored a correction officer's order to cease such conduct. Following a tierIII disciplinary hearing, he was found guilty of creating a disturbance, interfering with an employee andrefusing a direct order, but not guilty of harassment. This determination was also upheld onadministrative appeal. Petitioner then commenced the instant CPLR article 78 proceeding challengingthe two disciplinary determinations as well as the determination denying his grievance.
Preliminarily, respondent concedes and we agree that substantial evidence does not support thedetermination rendered after the tier II disciplinary hearing nor that part of the determination renderedafter the tier III disciplinary hearing which found petitioner guilty of interfering with an employee.Accordingly, the determinations of guilt are annulled in that respect. It is not necessary, however, toremit this matter for a redetermination of the penalties as no loss of good time was imposed andpetitioner has already served the penalties (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Wan Zhang v Murphy, 1 AD3d784, 784 [2003]).
Turning to the remainder of the tier III disciplinary determination, we find no reason to disturb it.Any deficiencies in the adequacy of the assistance initially provided to petitioner were remedied by theHearing Officer when she appointed a second assistant and gave petitioner time to review thedocumentation requested before resuming the hearing (see Matter of Parkinson v Selsky, 49 AD3d 985, 986 [2008]; Matter of Harris v Selsky, 28 AD3d982, 983 [2006]). Likewise, there is no merit to petitioner's challenge to the timeliness of thehearing inasmuch as proper extensions were obtained and the hearing was completed before the dateset forth in the final extension (see Matter ofMorusma v Fischer, 74 AD3d 1675 [2010]; Matter of Sanders v Goord, 47 AD3d 1183, 1183 [2008]).Furthermore, petitioner's claim of Hearing Officer bias is not substantiated by the record and there is noindication that the determination at issue flowed from any alleged bias (see Matter of Shell v Superintendent of OneidaCorrectional Facility, 18 AD3d 1044, 1045 [2005]; Matter of Black v Goord, 12 AD3d 1005, 1006 [2004]). Petitioner'sremaining claims with respect to the tier III disciplinary determination are either unpreserved for ourreview or are lacking in merit.
As for petitioner's challenge to the determination denying his grievance, we note that our review islimited to whether such determination is "irrational, arbitrary and capricious or affected by an error oflaw" (Matter of Bermudez v Fischer, 71AD3d 1361, 1362 [2010], lv [*3]denied 15 NY3d 702[2010]; see Matter of Isaac v Fischer,69 AD3d 1144, 1144-1145 [2010], lv denied 14 NY3d 712 [2010]). The record revealsthat petitioner's file did not contain a no restraint order at the time of the incident in question. Moreover,petitioner failed to demonstrate that the Milburn decree was applicable to his confinement at EasternCorrectional Facility. Notably, subsequent to the incident, petitioner was transported to medicalappointments without a problem and did not request to be seen by an orthopedic surgeon. Under thesecircumstances, we cannot conclude that the denial of his grievance was irrational (see generally Matter of Gibbs v Miller, 10AD3d 785 [2004]). To the extent that petitioner also requested expungement of the disciplinarydetermination from his institutional record, we note that such determination is not the proper subject ofthe grievance procedure (see Matter of Adorno v Jones, 113 AD2d 973, 974 [1985]).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Adjudged that the determination datedMay 15, 2009 rendered after the tier II disciplinary hearing is annulled, without costs, petition grantedto that extent and respondent is directed to expunge all references thereto from petitioner's institutionalrecord. Adjudged that the determination dated July 24, 2009 rendered after the tier III disciplinaryhearing is modified, on the law, without costs, by annulling so much thereof as found petitioner guilty ofinterfering with an employee; petition granted to that extent and respondent is directed to expunge allreferences thereto from petitioner's institutional record; and, as so modified, confirmed. Adjudged thatthe determination dated July 1, 2009 denying petitioner's grievance is confirmed, without costs, andpetition dismissed to that extent.
Footnote *: The Milburn decree refers to asettlement accord reached in a class action in Milburn v Coughlin (US Dist Ct, SD NY, 79 Civ5077, Preska, J., 2007) and sets forth certain requirements for the operation of the Unit for thePhysically Disabled at Green Haven Correctional Facility in Dutchess County as is explained inStevens v Goord (535 F Supp 2d 373, 377 [2008]).