IN RE: Jonathan JOHNSON

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

IN RE: Jonathan JOHNSON, Appellant, v. Glenn GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: September 26, 2002

Before CARDONA, P.J., MERCURE, PETERS, CARPINELLO and KANE, JJ. Jonathan Johnson, Pine City, appellant pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Castellino, J.), entered June 20, 2001 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review three determinations of respondents finding petitioner guilty of violating certain prison disciplinary rules.

On September 21, 2000, petitioner, an inmate at Southport Correctional Facility in Chemung County, was charged in a misbehavior report with refusing a direct order and harassment.   Following a tier II disciplinary hearing held on September 26, 2000, petitioner was found guilty of both charges and the determination was affirmed upon administrative appeal.   Also on September 26, 2000, petitioner was charged in four misbehavior reports with attempted assault, making threats, violent conduct, refusing a direct order, harassment and altering state property.   Following a tier III disciplinary hearing held on October 10 and 13, 2000, petitioner was found guilty of all the charges.   On October 20, 2000, petitioner was again charged in a misbehavior report, this time with making threats and harassment, and was found guilty of both charges after a tier III disciplinary hearing commencing on October 24, 2000.   Upon administrative appeal the penalty was modified, reducing the time in the special housing unit to 180 days.   Petitioner commenced this proceeding pursuant to CPLR article 78 challenging all three disciplinary determinations.   Supreme Court dismissed the petition and this appeal ensued.

Initially, we reject petitioner's contention that his petition raised a substantial evidence question that should have been transferred to this Court.   Our reading of the petition discloses that petitioner challenged the disciplinary determinations on procedural grounds only.   Therefore, as the substantial evidence issue was not raised before Supreme Court, we decline to address it (see Matter of Izquierdo v. Goord, 275 A.D.2d 494, 495, 711 N.Y.S.2d 874, appeal dismissed 95 N.Y.2d 930, 721 N.Y.S.2d 606, 744 N.E.2d 142, lv. denied 96 N.Y.2d 704, 723 N.Y.S.2d 131, 746 N.E.2d 186).

 Turning to the procedural issues, petitioner claims that he was improperly removed from the September 26, 2000 hearing.   However, the record establishes that when the Hearing Officer adjourned the hearing in order to locate witnesses, petitioner became unruly and disruptive.   Under these circumstances, we conclude that the Hearing Officer properly excluded petitioner from the remainder of the hearing (see Matter of Beckles v. Selsky, 273 A.D.2d 584, 585, 710 N.Y.S.2d 552, lv. denied 95 N.Y.2d 764, 716 N.Y.S.2d 38, 739 N.E.2d 294;  Matter of Dumpson v. McGinnis, 247 A.D.2d 804, 669 N.Y.S.2d 431;   Matter of Joyce v. Goord, 246 A.D.2d 926, 927-928, 667 N.Y.S.2d 833).   Petitioner further argues that it was improper for the Hearing Officer to deny his request to call a specific correction officer as a witness.   As the record supports the Hearing Officer's conclusion that testimony from that officer would be irrelevant because he was not present at the time of the incident, we find no error in the denial of petitioner's request (see Matter of Beckles v. Selsky, supra at 585, 710 N.Y.S.2d 552;  Matter of Greene v. Coombe, 238 A.D.2d 813, 814, 656 N.Y.S.2d 522, lv. denied 91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533).

 Next, petitioner contends that he did not receive copies of the relevant misbehavior reports at least 24 hours prior to the October 10, 2000 hearing as required by regulations.   However, petitioner signed a “Tier Assistance Selection Form” on September 27, 2000, which clearly stated that he had received copies of the reports, and petitioner's employee assistant submitted a memorandum stating that petitioner told her that “he had sent his papers away to the courts” and no longer had them.   Therefore, we are unpersuaded that petitioner did not receive copies of the reports in advance of the hearing as required.   In any event, the Hearing Officer provided petitioner with copies of the reports and adjourned the hearing to provide him an opportunity to review them, thereby curing any possible defect in notice.

 Similarly, petitioner's contention that the hearing was not timely commenced is without merit.   Pursuant to 7 NYCRR 251-5.1(b), a hearing must be completed “within 14 days following the writing of the misbehavior report.”   In this instance, the hearing was commenced on the 14th day, after which valid extensions were granted. Under these circumstances, we find no unlawful delay (see Matter of Mason v. Goord, 271 A.D.2d 779, 780, 705 N.Y.S.2d 904;  Matter of Carini v. Goord, 270 A.D.2d 663, 664, 704 N.Y.S.2d 741;  Matter of Stokes v. Goord, 254 A.D.2d 558, 558, 680 N.Y.S.2d 126, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 420, 708 N.E.2d 177).   In any event, the time limitations imposed by the regulations are directory and not mandatory (see Matter of Taylor v. Coughlin, 135 A.D.2d 992, 993, 522 N.Y.S.2d 714).   We also reject petitioner's contention that the determination cannot stand because he did not receive a copy of the determination within 24 hours of the conclusion of the hearing.   Petitioner was not present to receive the determination because he refused to attend the hearing, and it was sent to him through interdepartmental mail.   Petitioner has failed to demonstrate any prejudice resulting from this slight delay (see Matter of Davis v. Bennett, 256 A.D.2d 791, 791, 681 N.Y.S.2d 812;  Matter of Sheppard v. Le Fevre, 116 A.D.2d 867, 868, 498 N.Y.S.2d 190).

 With regard to the October 24, 2000 hearing, petitioner's assertion that the date on the misbehavior report was incorrect raised a credibility issue that was properly resolved by the Hearing Officer (see Matter of Burr v. Goord, 284 A.D.2d 881, 882, 727 N.Y.S.2d 345;  Matter of Bell v. Leary, 275 A.D.2d 834, 713 N.Y.S.2d 885).   Furthermore, we reject petitioner's claim that he was denied employee assistance, as he waived that right (see Matter of Holmes v. McGinnis, 257 A.D.2d 911, 911, 684 N.Y.S.2d 665, appeal dismissed, lv. denied 93 N.Y.2d 906, 691 N.Y.S.2d 377, 713 N.E.2d 411;  Matter of Shapard v. Coombe, 245 A.D.2d 982, 982 983, 667 N.Y.S.2d 98).   Nor do we find any merit to petitioner's contention that the Hearing Officer was biased. Our examination of the record reveals that the hearing was conducted in an impartial manner (see Matter of Tumminia v. Senkowski, 290 A.D.2d 902, 903, 737 N.Y.S.2d 669;  Matter of Tebout v. Goord, 290 A.D.2d 833, 833, 736 N.Y.S.2d 280), and petitioner has not demonstrated that “the outcome of the hearing flowed from any such bias” (Matter of Tebout v. Goord, supra at 833, 736 N.Y.S.2d 280).

Finally, we find petitioner's claim that he was denied documentary evidence to be equally meritless, as the only evidence he requested was a videotape which, according to the record, did not exist.

ORDERED that the judgment is affirmed, without costs.

MERCURE, J.

CARDONA, P.J., PETERS, CARPINELLO and KANE, JJ., concur.

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