IN RE: Cy GREENE

Reset A A Font size: Print

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

IN RE: Cy GREENE, Petitioner, v. Philip COOMBE Jr., as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: April 24, 1997

Before MIKOLL, J.P., and CREW, CASEY, PETERS and CARPINELLO, JJ. Cy Greene, Auburn, in pro. per. Dennis C. Vacco, Attorney-General (Wayne L. Benjamin, of counsel), Albany, for respondents.

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

 While an inmate at Auburn Correctional Facility in Cayuga County, petitioner was found to be in possession of three razorblade-type weapons which correction officers discovered had been secreted in his prison-issued boots.   Following a disciplinary hearing, he was found guilty of possessing a weapon.   Petitioner commenced this CPLR article 78 proceeding challenging this determination on the grounds, inter alia, that the disciplinary hearing was not completed in a timely manner and that he was denied the right to present certain witnesses as well as certain documentary evidence at the hearing.1

 Petitioner was served with the misbehavior report on January 6, 1996 and the hearing was commenced on January 13, 1996.   Although the hearing was required to be completed within 14 days of the misbehavior report (see, 7 NYCRR 251-5.1[b] ), the record discloses that the Hearing Officer obtained a valid extension of time to complete the hearing on January 19, 1996, which was consented to by petitioner.   In view of this, as well as the fact that the extension was granted for the purpose of obtaining certain documentary evidence requested by petitioner, and that the hearing was completed by the date set forth in the extension, we find that the hearing was concluded in a timely fashion (see, Matter of Talley v. Walker, 203 A.D.2d 924, 611 N.Y.S.2d 408, lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158, cert. denied 514 U.S. 1131, 115 S.Ct. 2008, 131 L.Ed.2d 1008;  Matter of Afrika v. Edwards, 160 A.D.2d 1212, 555 N.Y.S.2d 473).

 Moreover, while petitioner was denied the right to call certain inmate witnesses at the hearing, the Hearing Officer denied their testimony because it would have been redundant or irrelevant in that such witnesses did not have personal knowledge of facts pertinent to the incident in question or their testimony would have been duplicative of that of the three inmate witnesses who did testify (see, Matter of Johnson v. Coombe, 228 A.D.2d 755, 756, 644 N.Y.S.2d 72, 73;  Matter of Mabry v. Coughlin, 196 A.D.2d 931, 601 N.Y.S.2d 975, lv. denied 82 N.Y.2d 664, 610 N.Y.S.2d 152, 632 N.E.2d 462).   Similarly, inasmuch as petitioner was provided with copies of the State shop records he requested, we reject his claim that he was denied the right to present relevant documentary evidence in his defense.   We have considered petitioner's remaining contentions and find them either unpreserved for our review or lacking in merit.

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

FOOTNOTES

1.   Inasmuch as petitioner does not raise the issue of substantial evidence, this proceeding was improperly transferred to this court.   Nevertheless, in the interest of judicial economy, we shall retain jurisdiction and address the merits of petitioner's claims (see, Matter of Harris v. New York State Div. of Parole, 211 A.D.2d 205, 206, 628 N.Y.S.2d 416).

MIKOLL, Justice Presiding.

CREW, CASEY, PETERS and CARPINELLO, JJ., concur.

Copied to clipboard