IN RE: Michael CRUZ (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Daniel Lynch, J.), entered July 17, 2025 in Albany County, which denied petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

On October 1, 2024, petitioner was charged in a misbehavior report with possession of a weapon and possession of contraband and was placed in the Special Housing Unit (hereinafter SHU).  At the conclusion of a tier III disciplinary hearing conducted on October 7, 2024, petitioner was found guilty as charged.  The penalties included the imposition of a confinement penalty of 393 days in SHU. That decision was affirmed upon administrative appeal.  Petitioner then commenced this CPLR article 78 proceeding to annul the underlying determination on the basis that his disciplinary hearing was untimely, as it was not commenced and completed within five days of his initial placement in SHU pursuant to Correction Law § 137(6)(l).  Supreme Court agreed that the hearing was untimely but found that annulment of the determination was not the proper remedy as petitioner had not demonstrated that he was substantially prejudiced by the one-day delay.  Despite the finding of a lack of substantial prejudice, the court did reduce the 393–day confinement penalty to 392 days as an “equitable result” for the one-day delay.¹  Petitioner appeals.

Petitioner's sole contention on appeal is that the timeliness requirement set forth in Correction Law § 137(6)(l) is mandatory and, as his disciplinary hearing was not completed within five days of his initial placement in SHU, the determination of guilt that resulted therefrom must be annulled.  We have recently determined, however, that given the lack of any language in Correction Law § 137(6)(l) that would limit respondent's authority to proceed with a hearing in the event that the five-day time limit was violated, the language requiring that a hearing be completed no later than five days after an incarcerated individual is placed in SHU is directory, rather than mandatory (see Matter of Guerrero v Martuscello, ––– AD3d ––––, ––––, 254 NYS3d 271, 275 [3d Dept 2026] ).  “Because the timeliness of the hearing is directory, petitioner must demonstrate that he was substantially prejudiced by the delay in order to obtain the relief of annulment that he now seeks” (id. at –––, 254 NYS3d at 276 [citations omitted] ).  As petitioner has not shown, or alleged, that he was substantially prejudiced by the short delay, annulment of the determination is unwarranted (see Matter of Coggins v Rodriguez, 236 AD3d 1285, 1286 [3d Dept 2025];  Matter of Legette v Rodriguez, 213 AD3d 1066, 1068 [3d Dept 2023] ).  In view of our decision, we do not address respondent's alternative ground for affirmance, that the hearing was timely pursuant to General Construction Law § 25–a (1).

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Respondent does not challenge the reduction in the penalty.

Garry, P.J.

Fisher, Powers, Corcoran and Ryba, JJ., concur.