IN RE: RAMON ALVAREZ

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

IN RE: RAMON ALVAREZ, PETITIONER, v. BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT. RAMON ALVAREZ, PETITIONER PRO SE.

TP 11–01530

Decided: April 20, 2012

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET 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, Erie County [John L. Michalski, A.J.], entered July 26, 2011) to review determinations of respondent and for injunctive and declaratory relief.   The determinations found that petitioner had violated various inmate rules and transferred petitioner to Gowanda Correctional Facility to attend a sex offender counseling and treatment program.

It is hereby ORDERED that the determinations are unanimously confirmed without costs and the petition is dismissed.

While petitioner was confined in the special housing unit (SHU) as a result of the first MBR, he was served with another MBR (second MBR) alleging that he violated rules 113.22 (7 NYCRR 270.2[B][14] [xiii] [possessing articles in unauthorized areas] ) and 106.10 (7 NYCRR 270.2[B][7][i] [refusing to obey orders promptly and without argument] ).   The second MBR was written on December 21, 2010.   Contrary to petitioner's contention, the hearing on the second MBR was timely commenced and completed (see 7 NYCRR 251–5.1[a], [b] ).  Because “petitioner was already confined to [the SHU] as a result of an unrelated matter when he received the instant misbehavior report[,] ․ the seven-day rule for commencing the hearing was inapplicable” (Matter of Faison v. Senkowski, 256 A.D.2d 702, appeal dismissed 93 N.Y.2d 870;  see 7 NYCRR 251–5.1[a];  Matter of Applewhite v. Goord, 45 AD3d 1112, lv denied 10 NY3d 711;  Matter of Rodriguez v. Goord, 276 A.D.2d 493).   Petitioner also contends that the hearing on the second MBR was untimely under section 251–5.1(b) because it was not completed within 14 days following the writing of the second MBR. That contention lacks merit.  “In calculating the 14–day time period, the date the misbehavior report is written is excluded” (Matter of Freeman v. Selsky, 270 A.D.2d 547, 547–548;  see Matter of Harris v. Goord, 268 A.D.2d 933, 934;  see generally General Construction Law § 20).   Here, the second MBR was written on December 21, 2010, and the hearing was completed on January 4, 2011, which was within the requisite time period.

Petitioner further contends that the Hearing Officer presiding over the hearing on the second MBR was biased as well, but he failed to exhaust his administrative remedies with respect to that contention (see Nelson, 188 A.D.2d at 1071).   With respect to petitioner's contention that he did not receive adequate employee assistance on the second MBR, we conclude that his contention is not properly before us inasmuch as petitioner did not raise that contention in his petition (see Pigmentel, 19 AD3d at 817;  Crawford, 124 A.D.2d 1018).

Frances E. Cafarell

Clerk of the Court