IN RE: Michael R. LOPEZ

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

IN RE: Michael R. LOPEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.


Decided: April 11, 2019

Before:  Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ. Michael R. Lopez, Auburn, petitioner pro se. Letitia James, Attorney General, Albany (Ronald M. Goldfarb of counsel), for respondent.


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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with engaging in sexual acts, violating facility visiting procedures and engaging in lewd conduct after he was observed by a correction officer removing his penis from his pants, touching and, among other sexual acts, being touched in the groin area by a female visitor.  Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty was imposed.  Upon administrative appeal, the penalty was modified, but the determination otherwise was affirmed.  Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.

We confirm.  The misbehavior report, the testimony adduced at the hearing, the documentary evidence and the video recording of the incident provide substantial evidence to support the determination of guilt (see Matter of Caldwell v. Rock, 93 A.D.3d 1048, 1048, 940 N.Y.S.2d 688 [2012];  Matter of Mealer v. Selsky, 290 A.D.2d 778, 778, 736 N.Y.S.2d 203 [2002];  Matter of Garcia v. Goord, 261 A.D.2d 674, 674, 690 N.Y.S.2d 169 [1999], lv dismissed 94 N.Y.2d 834, 703 N.Y.S.2d 66, 724 N.E.2d 761 [1999] ).  The contrary testimony offered by petitioner and his inmate witness, as well as petitioner's assertion that he was not the subject inmate in the video recording of the incident, presented credibility issues for the Hearing Officer to resolve (see Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [2019] ).

Turning to petitioner's procedural arguments, his contention regarding the delay in conducting the hearing lacks merit, as the hearing was completed within the time frames set forth in the extensions that were necessary to obtain the video recording of the incident and the attempt to obtain testimony from certain requested witnesses (see Matter of Moise v. Annucci, 168 A.D.3d 1337, 1338, 92 N.Y.S.3d 736 [2019] ).  In any event, the time requirements contained in 7 NYCRR 251–5.1 are directory, not mandatory, and petitioner has failed to demonstrate prejudice as a result of any delay that occurred (see id.;  Matter of Caldwell v. Venettozzi, 166 A.D.3d 1184, 1185, 89 N.Y.S.3d 729 [2018] ).  As to petitioner's inadequate employee assistance claim, the record reflects that he received meaningful assistance.  All of petitioner's requested witnesses testified at the hearing (see Matter of Caldwell v. Venettozzi, 166 A.D.3d at 1185, 89 N.Y.S.3d 729;  Matter of Davis v. Venettozzi, 152 A.D.3d 1112, 1113, 59 N.Y.S.3d 833 [2017] ), and petitioner was provided with all existing and relevant documents that he requested;  accordingly, petitioner has failed to demonstrate that he was prejudiced.  Petitioner's remaining contentions, to the extent they are preserved, have been considered and found to be without merit.

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

Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ., concur.

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