IN RE: Daniel EVERETT (2019)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

As a result of an investigation, petitioner was charged in a misbehavior report with soliciting another to smuggle items into the correctional facility, conspiring to introduce narcotics into the correctional facility, engaging in third-party calls and exchanging a personal identification number.  Following a tier III disciplinary hearing, petitioner was found guilty as charged and that determination was affirmed upon administrative appeal.  This CPLR article 78 proceeding ensued.

Contrary to petitioner's contention, the misbehavior report, the testimony from its author who conducted the investigation, the recorded telephone calls and the confidential information provide substantial evidence to support the determination of guilt (see Matter of Bachiller v. Annucci, 166 A.D.3d 1186, 1186, 89 N.Y.S.3d 335 [2018];  Matter of Bernard v. Annucci, 148 A.D.3d 1448, 1448, 50 N.Y.S.3d 189 [2017] ).  Petitioner's denial that the terms he used during the telephone calls referred to drugs presented a credibility issue for the Hearing Officer to resolve (see Matter of Bachiller v. Annucci, 166 A.D.3d at 1187, 89 N.Y.S.3d 335;  Matter of Judge v. Department of Corr. & Community Supervision, 153 A.D.3d 1469, 1470, 59 N.Y.S.3d 724 [2017] ).

Turning to the procedural challenges, we are unpersuaded by petitioner's contention that the hearing was not completed in a timely manner because an extension was not obtained until the day after the previous extension expired.  The regulatory time requirements are directory, not mandatory, and petitioner has not demonstrated that he was prejudiced by the short delay in obtaining the extension (see Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017];  Matter of Al–Matin v. Prack, 131 A.D.3d 1293, 1293, 16 N.Y.S.3d 96 [2015], lv denied 26 N.Y.3d 913, 23 N.Y.S.3d 639, 44 N.E.3d 937 [2015];  Matter of De La Cruz v. Bezio, 107 A.D.3d 1275, 1276, 967 N.Y.S.2d 519 [2013] ).  We also find without merit petitioner's contention that he was denied effective employee assistance as the record establishes that any alleged deficiencies were remedied by the Hearing Officer without any prejudice to petitioner (see Matter of Gulifield v. Annucci, 164 A.D.3d 1001, 1003, 83 N.Y.S.3d 363 [2018];  Matter of Funches v. State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [2018], lv denied 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019] ).  To the extent that petitioner asserts that he was denied the right to call a witness, the record establishes that the Hearing Officer made reasonable and substantial efforts to contact the requested witness at his last known telephone number (see Matter of Davila v. Prack, 113 A.D.3d 978, 979, 979 N.Y.S.2d 195 [2014], lv denied 23 N.Y.3d 904, 990 N.Y.S.2d 162, 13 N.E.3d 662 [2014] ).  We have reviewed petitioner's remaining contentions, to the extent that they are preserved, and find them to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ., concur.