| Matter of Montgomery v Fischer |
| 2011 NY Slip Op 04340 [84 AD3d 1666] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Arthur Ray Montgomery, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Garry, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Greene County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was found guilty of engaging in a sexual act with another inmate in violation ofprison disciplinary rules following a tier III disciplinary hearing. Upon administrative review, thisdetermination was upheld. Petitioner thereafter commenced this CPLR article 78 proceedingchallenging that determination.
The misbehavior report, together with the testimony of the officer who prepared it, theconfidential testimony and the documentary evidence, provide substantial evidence to support thedetermination of guilt (see Matter ofRodriguez v Fischer, 76 AD3d 1131, 1132 [2010]; Matter of Smart v New York State Dept. of Correctional Servs., 75AD3d 1017, 1017-1018 [2010]; Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]). Petitioner'sassertion that the misbehavior report was insufficient is unavailing. A review of the misbehaviorreport and the attached memoranda confirms the date, time and place of the incident and thedisciplinary rules alleged to have been violated, and the factual basis for the charges are set forthwith enough [*2]detail to notify petitioner of the charges andenable him to prepare a defense (seeMatter of Edwards v Leclaire, 71 AD3d 1199, 1200 [2010]; Matter of Page v Fischer, 64 AD3d1067, 1067 [2009]).
With regard to petitioner's claim that the hearing was not timely completed, the recordindicates that a timely extension was obtained. In any event, the regulatory time limits aredirectory, not mandatory (see Matter of Rodriguez v Fischer, 76 AD3d at 1132;Matter of Sanders v Goord, 47 AD3d at 988). While the hearing transcript does containgaps, it was not so deficient as to preclude meaningful review (see Matter of Barclay v Knowles, 79AD3d 1550, 1551 [2010]; Matter ofReese v Bezio, 75 AD3d 1029, 1030 [2010]). Finally, the record reveals no bias on thepart of the Hearing Officer and the determination was clearly based upon the evidence presented(see Matter of Reese v Bezio, 75 AD3d at 1030; Matter of Smart v New York StateDept. of Correctional Servs., 75 AD3d at 1018).
Peters, J.P., Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.