IN RE: Ricardo LARA

Reset A A Font size: Print

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

IN RE: Ricardo LARA, Petitioner, v. Keith DUBRAY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: June 26, 2008

Before:  CARDONA, P.J., SPAIN, LAHTINEN, KANE and STEIN, JJ. Ricardo Lara, Elmira, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After a correction officer followed a trail of broken pieces of plastic to petitioner's cell, where he observed a piece of videotape lying on the cell floor, petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit the destruction of state property and the possession of contraband.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged and a penalty was imposed.   Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination.

 Preliminarily, we reject petitioner's assertion that the hearing was not completed in a timely manner.   The record reflects that a valid extension was granted and that petitioner was so advised.   In any event, the relevant time limits are directory, not mandatory, and there is no indication that petitioner was prejudiced by the resulting delay (see Matter of Chaney v. Selsky, 37 A.D.3d 983, 984, 830 N.Y.S.2d 605 [2007] ).   Petitioner's claim that he was denied the right to present relevant documentary evidence is equally unpersuasive, as there is no indication that the requested documents actually existed (see Matter of Lebron v. McGinnis, 26 A.D.3d 658, 659, 810 N.Y.S.2d 526 [2006], lv. denied 7 N.Y.3d 704, 819 N.Y.S.2d 871, 853 N.E.2d 242 [2006] ).

 Nor do we find merit to petitioner's claim that he was denied due process because he was not permitted to witness the search of his cell.   The correction officer who authored the misbehavior report testified that petitioner's cell was searched for the remnants of a broken VCR and certain videotapes.   As the correction officer could not be certain that all of the metal pieces from the VCR had been recovered, he placed petitioner in handcuffs and secured him in another location for safety reasons.   Under such circumstances, we find no due process violation (see Matter of Llull v. Coombe, 238 A.D.2d 761, 762, 656 N.Y.S.2d 479 [1997], lv. denied 90 N.Y.2d 804, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997];  compare Matter of Gonzalez v. Wronski, 247 A.D.2d 767, 767-768, 669 N.Y.S.2d 421 [1998] ).

 Finally, the written misbehavior report, together with the testimony of the correction officers, provide substantial evidence of petitioner's guilt (see Matter of Ackridge v. Ekpe, 42 A.D.3d 827, 828, 838 N.Y.S.2d 922 [2007] ).   Contrary to petitioner's assertion, the misbehavior report was sufficiently detailed to apprise him of the charges against him and enable him to prepare a defense.   To the extent that petitioner argues that he did not steal state property, we need note only that the relevant rule is sufficiently broad to encompass the conduct charged (see 7 NYCRR 270.2[B][17][i] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Copied to clipboard