State of New York Supreme Court, Appellate Division Third Judicial Department
September 23, 2010
IN THE MATTER OF JOSE RODRIGUEZ, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
MEMORANDUM AND JUDGMENT
Calendar Date: August 2, 2010
Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.
Following a prison fight that resulted in the stabbing death of a fellow inmate, petitioner was served with a misbehavior report charging him with multiple prison disciplinary violations. During the course of a tier III disciplinary hearing, petitioner pleaded guilty to violent conduct, assault and fighting, but pleaded not guilty to possessing a weapon and creating a disturbance. Following the hearing, he was found guilty of all charges and that determination was affirmed administratively. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. Initially, we note that inasmuch as petitioner pleaded guilty to violent conduct, assault and fighting during the hearing, he is precluded from challenging the determination with regard to those charges (see Matter of Key v Fischer, 72 AD3d 1365, 1366 ; Matter of McMoore v Bezio, 67 AD3d 1218 ). With regard to the charges of possessing a weapon and creating a disturbance, we find the misbehavior report, hearing testimony, documentary evidence and signed confessions given by petitioner to State Police investigators, and the reasonable inferences to be drawn therefrom, provide substantial evidence to support the determination of guilt (see Matter of Wade v Artus, 59 AD3d 793, 794 , appeal dismissed 12 NY3d 872 ; Matter of Gourdine v Goord, 18 AD3d 1045, 1045-1046 ). Notably, petitioner admitted in a signed statement that he stabbed the victim in the chest with a shank during the altercation.
Turning to petitioner's contention that the hearing was not completed in a timely manner, the record indicates that an extension was obtained within 14 days of the initial misbehavior report and the hearing was then completed within the time provided (see Matter of Davis v Prack, 63 AD3d 1457, 1458 ). In any event, we note that the regulatory time limits for hearings are not mandatory, but directory, and petitioner has failed to demonstrate any prejudice by the alleged delay (see Davidson v State of New York, 66 AD3d 1089, 1090 ; Matter of Foster v Bezio, 62 AD3d 1222, 1223 ). We have examined petitioner's remaining arguments and find them to be without merit.
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
© 1992-2010 VersusLaw Inc.