IN RE: Windsor COLEMAN (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Julian Schreibman, J.), entered September 16, 2025 in Albany County, which dismissed 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 February 26, 2024, petitioner was charged in a misbehavior report with refusing direct orders, obstructing visibility, assaulting staff, engaging in violent conduct, creating a disturbance and possessing a weapon.  According to the report, petitioner covered the window to his cell and barricaded the door with his mattress and state linens.  Upon facility staff opening the door, petitioner rushed them with a weapon made from a toilet brush with a sharpened point and a handle.  After staff subdued petitioner, he was moved to a mental health unit in another facility.  A tier III disciplinary hearing ensued at which petitioner objected to the timeliness of the hearing in that it was not timely commenced, but the Hearing Officer explained to petitioner that an extension was obtained due to his stay in the mental health unit.  At the conclusion of the hearing, petitioner was found guilty of all the charges, and that determination was upheld upon administrative review.  This CPLR article 78 proceeding ensued, alleging, as relevant here, that respondent failed to commence and finish the disciplinary hearing in a timely manner because petitioner was placed and remained in the segregated housing unit for more than five days before his hearing commenced.  Supreme Court dismissed the petition, finding, among other things, that an extension for a superintendent hearing is proper where, as here, petitioner was admitted to a mental health unit after committing the offenses and because compliance with the regulatory time limits is directory only and there is no indication of any substantive prejudice resulting from the delay.  Petitioner appeals.¹

We affirm.  Petitioner contends, in sum and substance, that Supreme Court erred in dismissing his petition because the disciplinary hearing was untimely as it was required, pursuant to 7 NYCRR 251–5.1, to be commenced and completed within five days of his confinement within the segregated confinement unit, where he was held for nine days before the disciplinary hearing started (see Correction Law § 137[6][l] ).  However, like its regulatory predecessor (see 7 NYCRR former 251–5.1[a] ), “the language requiring that a hearing be completed no later than five days after an incarcerated individual is placed in prehearing segregated confinement remains directory under [the Humane Alternatives to Long–Term Solitary Confinement Act (L 2021, ch 93) ]” (Matter of Guerrero v Martuscello, ––– AD3d ––––, ––––, 254 NYS3d 271, 275 [3d Dept 2026] ).  Accordingly, in order to obtain the relief of annulment that he now seeks, petitioner must demonstrate that he was substantially prejudiced by the delay (see id. at –––, 254 NYS3d at 276;  Matter of 989 Hempstead Turnpike, LLC v Town Bd. of the Town of Hempstead, 215 AD3d 668, 670 [3d Dept 2023];  Matter of Pena v New York State Gaming Commn., 127 AD3d 1287, 1290 [3d Dept 2015], lv denied 26 NY3d 903 & lv dismissed 25 NY3d 1059 [2015] ).  Inasmuch as petitioner has failed to make any attempt at a demonstration of prejudice, the brief delay does not warrant annulment of the determination of guilt.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   We note that the petition raised a substantial evidence question and therefore Supreme Court should have transferred it to this Court (see CPLR 7804[g];  Matter of Mackenzie v Tedford, 208 AD3d 1526, 1527 [3d Dept 2022];  compare Matter of Tomei v McDonald, ––– AD3d ––––, ––––, 254 NYS3d 722, 724 [3d Dept 2026] ).  Regardless, petitioner has abandoned that argument on appeal.

Pritzker, J.P., Ceresia, McShan, Mackey and Corcoran, JJ., concur.