ROSALES, PETITIONER-APPELLANT PRO SE.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND
from a judgment (denominated order) of the Supreme Court,
Erie County (Russell P. Buscaglia, A.J.) entered February 2,
2016 pursuant to a CPLR article 78 proceeding. The judgment
dismissed 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 inmate rules 113.25 (7 NYCRR 270.2
[B]  [xv] [drug possession]), and 113.23 (7 NYCRR 270.2
[B]  [xiii] [contraband]). Supreme Court dismissed the
petition, and we affirm. Petitioner initially contends that
he was not allowed to observe the search of his cell in
violation of Department of Corrections and Community
Supervision directive No. 4910 (V) (D) (1). Although that
directive "provides that an inmate removed from his or
her cell for a search has the right to observe the search
absent a determination that he or she presents a safety or
security risk, " that directive is inapplicable here
because petitioner was removed from his cell for a urine
screen and administrative segregation and thus was not "
removed from his cell for the purpose of conducting the
search' " (Matter of Hawley v Annucci, 137
A.D.3d 1621, 1622; see Matter of Burgos v Prack, 129
A.D.3d 1434, 1434-1435).
further contends that his hearing was not completed within
the requisite 14-day time period (see 7 NYCRR
251-5.1 [b]). As a preliminary matter, we note that
petitioner incorrectly measures the 14-day time period from
the date of the incident rather than the date of the
misbehavior report (see id.). In any event,
petitioner's contention lacks merit. "Although the
hearing was not completed within 14 days following the
writing of the misbehavior report..., it was commenced within
that time limit[, ] and an extension was properly authorized
by the Commissioner's designee" (Matter of
Talley v Walker, 203 A.D.2d 924, 924, lv denied
84 N.Y.2d 803, cert denied 514 U.S. 1131; see
Matter of Edwards v Fischer, 87 A.D.3d 1328, 1329). We
further note that " the time requirement set forth in 7
NYCRR 251-5.1 (b) is merely directory, ... not mandatory, and
there has been no showing by petitioner that he suffered any
prejudice as a result of the delay' "
(Edwards, 87 A.D.3d at 1329).
to the contention of petitioner, the failure to provide
photographs of the contraband seized from his cell did not
constitute a denial of his right to present documentary
evidence inasmuch as such photographs did not exist (see
Matter of Spears v Fischer, 103 A.D.3d 1135, 1136;
Matter of Rodriguez v Goord, 18 A.D.3d 1081, 1081),
and "[t]he employee assistant cannot be faulted for...
failing to provide petitioner with documentary evidence that
did not exist' " (Matter of Green v Sticht,
124 A.D.3d 1338, 1338, lv denied 26 N.Y.3d 906;
see Matter of Russell v Selsky, 50 A.D.3d 1412,
1413). Moreover, "the record establishes that petitioner
was provided with all relevant documentation"
(Green, 124 A.D.3d at 1339). We have reviewed
petitioner's remaining contentions concerning the alleged
ineffectiveness of his employee assistant, and we conclude
that they lack merit. The employee assistant made the
requisite efforts to obtain documents and witnesses (see
Matter of Perez v Fischer, 62 A.D.3d 1104, 1105), and
petitioner's requests for documents that were collateral
and "irrelevant to the charge[s] at issue" were
properly denied (Matter of Mullamphy v Fischer, 112
A.D.3d 1177, 1177).
petitioner contends in his brief that he was denied his right
to be present for the telephonic testimony of two witnesses
and to have one of those two witnesses recalled for the
purpose of clarifying that witness's earlier testimony,
we agree with respondents that most of petitioner's
contentions are not properly before us. At the hearing,
petitioner never complained that he was not allowed to be
present for the witnesses' testimony. In the
administrative appeal, petitioner complained of only the
refusal to recall the one witness. Petitioner thus failed to
exhaust his administrative remedies with respect to the
contention that he was denied his right to be present during
the testimony of the two witnesses, " and this Court has
no discretionary authority to reach that contention'
" (Matter of McFadden v Prack, 93 A.D.3d 1268,
1269; see Matter of Jones v Annucci, 141 A.D.3d
1108, 1109). With respect to petitioner's contention that
the Hearing Officer erred in failing to recall the one
witness, we conclude that petitioner's contention lacks
merit. Petitioner claims that he needed to recall the witness
to clarify who made a particular statement, but the witness
never testified that he heard the statement. As a result,
that witness's testimony "did not require
clarifying" (Matter of Culbreath v Selsky, 286
A.D.2d 817, 817).
failed to exhaust his administrative remedies with respect to
his remaining contentions, including his contention that the
determination is not supported by substantial evidence, by
failing to raise them on his administrative appeal, and this
Court has no discretionary power to reach them (see
Matter of Sabino v ...