IN RE: WILLIAM EDWARDS

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: WILLIAM EDWARDS, PETITIONER, v. BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

TP 11–00552

Decided: September 30, 2011

PRESENT:  SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ. WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (EDWARD L. CHASSIN OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered March 11, 2011) to review a determination of respondent.   The determination found after a Tier III hearing that petitioner had violated various inmate rules.

Petitioner further contends that the Hearing Officer failed to complete the Tier III hearing in a timely manner.   Although the hearing was completed more than 14 days after “the writing of the misbehavior report” (7 NYCRR 251–5.1 [b] ), we nevertheless reject petitioner's contention inasmuch as the Hearing Officer obtained valid extensions and the hearing was completed within the extended time period.  “In any event, the time requirement set forth in 7 NYCRR 251–5.1(b) is merely directory, ․ not mandatory, and there has been no showing by petitioner that he suffered any prejudice as a result of the delay” (Matter of Crosby v. Selsky, 26 AD3d 571, 572).   There is no support in the record for the contention of petitioner that the Hearing Officer's determination was influenced by any alleged bias against petitioner (see Matter of Rodriguez v. Herbert, 270 A.D.2d 889, 890).  “ ‘The mere fact that the Hearing Officer ruled against the petitioner is insufficient to establish bias' “ (Matter of Wade v. Coombe, 241 A.D.2d 977).

“Because a single penalty was imposed and the record fails to specify any relation between the violations and that penalty,” we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violation (Matter of Pena v. Goord, 6 AD3d 1106, 1106).

Patricia L. Morgan

Clerk of the Court