FREDERICK MCMILLIAN, PETITIONER-APPELLANT PRO SE.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J.
MASTRACCO OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND
from a judgment (denominated order) of the Supreme Court,
Erie County (Russell P. Buscaglia, A.J.), entered April 5,
2016 in a proceeding pursuant to CPLR article 78. The
judgment denied the petition.
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Petitioner commenced this CPLR article 78 proceeding seeking
to annul the determination, following a tier III disciplinary
hearing, that he violated various inmate rules, including
102.10 (7 NYCRR 270.2 [B]  [i] [threats]), 106.10 (7 NYCRR
270.2 [B]  [i] [refusing a direct order]), and 107.10 (7
NYCRR 270.2 [B]  [i] [interference with an employee]).
Supreme Court denied the petition and confirmed
respondents' determination. We note at the outset that
the court erred in failing to transfer this proceeding to
this Court pursuant to CPLR 7804 (g). "[W]here a
substantial evidence issue is raised, the court shall first
dispose of such other objections as could terminate the
proceeding[, ]... [but i]f the determination of the other
objections does not terminate the proceeding, ' the court
shall transfer the proceeding to this Court" (Matter
of Murphy v Graham, 98 A.D.3d 833, 833-834, quoting CPLR
7804 [g]). We conclude that, "[b]ecause the petition
raises-albeit inartfully-a question of substantial evidence,
[the court] should have transferred the matter to this Court
after it disposed of other objections that could terminate
the proceeding' " (Matter of Argentina v
Fischer, 98 A.D.3d 768, 768). "Nonetheless, because
the record is now before us, we will treat the proceeding as
if it had been properly transferred here' "
(Matter of Quintana v City of Buffalo, 114 A.D.3d
1222, 1223, lv denied 23 N.Y.3d 902).
to petitioner's contention, the court's denomination
of its paper as an order rather than a judgment is
"merely an inconsequential and nonprejudicial error
which should be disregarded" (Matter of De Paula v
Memory Gardens, 90 A.D.2d 886, 886; see CRP/Extell
Parcel I, L.P. v Cuomo, 27 N.Y.3d 1034, 1037). We reject
petitioner's further contention that the hearing
disposition is not supported by substantial evidence.
"It is well established that a written misbehavior
report may constitute substantial evidence of an inmate's
misconduct" (Murphy, 98 A.D.3d at 834-835;
see Matter of Foster v Coughlin, 76 N.Y.2d 964, 966)
and, here, "[t]he misbehavior report, together with the
testimony of the author of the report who observed the
incident, constitutes substantial evidence supporting the
determination that petitioner violated [the] inmate
rule[s]' at issue" (Matter of Jones v
Annucci, 141 A.D.3d 1108, 1108-1109). Moreover,
"[a]lthough the version of events relayed by the
petitioner and his inmate witnesses conflicted with that of
the correction officer who authored the report, " that
conflict merely "presented a credibility question to be
resolved by the [H]earing [O]fficer" (Matter of
Jackson v Prack, 137 A.D.3d 1133, 1134).
further contends that his hearing was not timely concluded.
We reject that contention. "[I]t is well settled that,
[a]bsent a showing that substantial prejudice resulted from
the delay, the regulatory time limits are construed to be
directory rather than mandatory' " (Matter of
Sierra v Annucci, 145 A.D.3d 1496, 1497; see Matter
of Al-Matin v Prack, 131 A.D.3d 1293, 1293, lv
denied 26 N.Y.3d 913; Matter of Edwards v
Fischer, 87 A.D.3d 1328, 1329). We note, too, that the
inmate disciplinary regulations permit the use of reasonable
extensions where "authorized by the commissioner or his
designee" (7 NYCRR 251-5.1 [b]; see Matter of
Sanders v Goord, 47 A.D.3d 987, 987-988; Matter of
Taylor v Coughlin, 135 A.D.2d 992, 993). Here, "the
delay was authorized and reasonable [and] the extensions were
proper[, ] and we thus conclude that the delay did not
prejudice petitioner, nor did it deny him due process"
(Taylor, 135 A.D.2d at 993).
reject petitioner's contention that he was deprived of
his regulatory rights to call certain witnesses and present
certain documentary evidence in support of his defense of
retaliation. " The additional testimony [and documentary
evidence] requested by petitioner would have been either
redundant or immaterial' " (Matter of Jackson v
Annucci, 122 A.D.3d 1288, 1288; see Matter of
Sanchez v Irvin, 186 A.D.2d 996, 996-997, lv
denied 81 N.Y.2d 702). Furthermore, it was proper for
the Hearing Officer to exclude the testimony of witnesses who
did not have personal knowledge of the alleged disciplinary
violations (see Jackson, 137 A.D.3d at 1134-1135;
Matter of Pilet v Annucci, 128 A.D.3d 1198,
1198-1199; Matter of Tafari v Rock, 96 A.D.3d 1321,
1321, lv denied 19 N.Y.3d 810). Moreover, petitioner
cannot now complain about the propriety of the explanations
appearing on the inmate witness refusal forms, where he never
"request[ed] that the... inmates be interviewed or that
the Hearing Officer ascertain the reason for their refusal to
testify and made no objections with regard to any [of those]
requested witnesses" (Matter of Torres v
Annucci, 144 A.D.3d 1289, 1290; see Matter of Dotson
v Coughlin, 191 A.D.2d 912, 914, lv denied 82
N.Y.2d 651; Matter of Crowley v O'Keefe, 148
A.D.2d 816, 817, appeal dismissed 74 N.Y.2d 780,
lv denied 74 N.Y.2d 613).
petitioner also raises a due process challenge to the Hearing
Officer's failure to procure the testimony of the
correction officer who escorted petitioner to his cell just
prior to the incident, petitioner failed to raise that
challenge in his administrative appeal and therefore failed
to exhaust his administrative remedies with respect thereto,
and this Court has no discretionary power to reach it
(see Matter of Nelson v Coughlin, 188 A.D.2d 1071,
1071, appeal dismissed 81 N.Y.2d 834; see also
Matter of Godwin v Goord, 270 A.D.2d 881, 881).
Additionally, to the extent that petitioner contends that the
Hearing Officer failed to make sufficient efforts to secure
inmate witnesses on his behalf, we reject that contention and
conclude that the Hearing Officer acted reasonably (see
Matter of Shepherd v Commissioner of Corr. & Community
Supervision, 123 A.D.3d 1283, 1283; see generally
Matter of Guzman v Coughlin, 90 A.D.2d 666, 666).
"[w]e reject petitioner's further contention that
the Hearing Officer was biased or that the determination
flowed from the alleged ...