| Matter of Rush v Bezio |
| 2010 NY Slip Op 09595 [79 AD3d 1548] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Basheen Rush, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Spain, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was told to leave the mess hall because his name did not appear on a list of inmates whowere authorized to be there when "special diet" meals were served. He began arguing with thecorrection officer escorting him from the mess hall, who subsequently authored a misbehavior reportcharging petitioner with creating a disturbance, making threats, refusing a direct order, violating messhall policies and being out of place. Following a tier III disciplinary hearing, petitioner was found guiltyof all but the latter charge. That determination was upheld on administrative appeal, with a downwardmodification of the penalty assessed. This CPLR article 78 proceeding ensued.
We confirm. Petitioner's assertion that he was denied the right to call certain witnesses is belied bythe record. Indeed, a civilian cook, a physician and the facility's food service administrator all testified insupport of petitioner's claim that he had an onion allergy. A [*2]correction officer who opened petitioner's cell and allowed him to go tothe mess hall testified similarly. As a result, petitioner was found not guilty of being out of place and theHearing Officer properly concluded that further testimony with respect to petitioner's diet would beredundant (see Matter of Brown vTaylor, 62 AD3d 1230, 1231 [2009]).
However, the remaining charges involve petitioner's behavior while being escorted from the messhall by the correction officer who—notwithstanding the foregoing—had correctlyascertained that petitioner was not on the special diet roster on the day of the incident. In this regard, aninmate witness testified that petitioner refused to leave the mess hall and pushed the correction officer.A correction sergeant likewise observed petitioner turn around near the entrance to the mess hall andaggressively confront the author of the misbehavior report. Such testimony, along with the misbehaviorreport itself, constitutes substantial evidence supporting the finding of guilt (see Matter of James vFischer, 58 AD3d 981 [2009]; Matter ofRodriguez v Selsky, 50 AD3d 1337, 1337 [2008]).
Petitioner's remaining procedural challenges are similarly unavailing. He contends that the hearingwas not timely commenced or completed. With regard to these calculations, the day the misbehaviorreport is completed is excluded (see Matterof Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Infante v Selsky, 299AD2d 612, 613 [2002]). Here, the misbehavior report was prepared on July 24, 2009 and the hearingcommenced on July 30, 2009, clearly within the required seven days (see 7 NYCRR 251-5.1[a]). As to completion, a timely extension was obtained on August 7, 2009 (see 7 NYCRR251-5.1 [b]) and further extensions were granted on August 12, 2009 and August 18, 2009. Thehearing ended within the time provided for in the final extension (see Matter of McKinley v Goord, 44 AD3d 1164 [2007]). Moreover,each of the extensions was necessary to obtain the testimony of requested witnesses (see generallyMatter of Sierra v Dubray, 58 AD3d 970, 970 [2009]).
Next, petitioner has failed to demonstrate that he was prejudiced by any purported deficiencies inthe misbehavior report, including that it was typed[FN*]—rather than handwritten—and not endorsed by all of the correction officers whowitnessed the incident (see Matter of West v Costello, 270 AD2d 673, 674 [2000]). Finally,we are satisfied that petitioner received adequate assistance and a fair and impartial hearing; there is noevidence of Hearing Officer bias (see Matterof Hayes v Fischer, 70 AD3d 1085, 1086 [2010]).
To the extent petitioner's remaining arguments are properly before us, they have been reviewed anddetermined to be without merit.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: The misbehavior report is signedand was prepared on the day the incident occurred (see 7 NYCRR 251-3.1).