Calendar Date: September 19, 2017
Robinson, Napanoch, petitioner pro se.
T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondents.
Before: McCarthy, J.P., Lynch, Devine, Aarons and Pritzker,
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Ulster County) to
review a determination of respondent Superintendent of
Eastern N.Y. Correctional Facility finding petitioner guilty
of violating certain prison disciplinary rules.
a prison inmate who worked in the facility's mattress
shop, was charged in a misbehavior report with refusing a
direct order, participating in a work stoppage and
unauthorized assembly. The charges arose after petitioner and
a number of other inmates stopped working and stood in line
for the inmate bathroom - apparently to protest the
shop's newly implemented bathroom pass policy. Following
a tier II disciplinary hearing, petitioner was found guilty
of participating in a work stoppage and disobeying a direct
order and not guilty of unauthorized assembly.
Petitioner's administrative appeal was unsuccessful, and
this CPLR article 78 proceeding ensued.
confirm. The misbehavior report and the testimony of its
author provide substantial evidence to support the
determination (see Matter of Harris v Goord, 284
A.D.2d 841, 841 ; cf. Matter of Lewis v Goord,
3 A.D.3d 681, 682 ; see generally Matter of Legeros
v Annucci, 147 A.D.3d 1175, 1175-1176 ). The
author of the misbehavior report identified petitioner as one
of the inmates standing in line at the time of the incident
and testified that the inmates refused "several orders
to disperse." Additionally, petitioner was interviewed
by a correction lieutenant following the incident, who
testified that petitioner admitted that he stood in line with
the other inmates, at least for a short period of time.
Petitioner's exculpatory explanations presented a
credibility issue for the Hearing Officer to resolve (see
Matter of Legeros v Annucci, 147 A.D.3d at 1176;
Matter of Perea v Fischer, 107 A.D.3d 1253, 1253
), and his objections to the shop's bathroom policy
- regardless of whether they are valid - do not excuse his
failure to comply with institutional rules and orders, which
implicates facility safety and security (see Matter of
Hudyih v Smith, 129 A.D.3d 1435, 1435-1436 ,
lv denied 26 N.Y.3d 909');">26 N.Y.3d 909 ).
procedural claims are equally unavailing. The misbehavior
report, which sets forth the particulars of the incident, as
well as the time, date and location where it occurred, was
sufficiently specific to both provide petitioner with notice
of the charges against him and enable him to discern his role
in the incident, thereby affording him an opportunity to
prepare a meaningful defense (see 7 NYCRR 251-3.1
[c]; Matter of Pagan v Venettozzi, 151 A.D.3d 1508,
1509 ; Matter of Caraway v Annucci, 144 A.D.3d
1296, 1297 , lv denied 29 N.Y.3d 903');">29 N.Y.3d 903 ).
To the extent that petitioner's challenge to the
timeliness of the hearing is preserved for our review, we
find it to be lacking in merit, as the hearing was completed
within the time period authorized by and set forth in the
valid extensions that were obtained (see Matter of
Wigfall v Department of Corr. & Community
Supervision, 153 A.D.3d 1464, 1465 ; Matter of
Jackson v Annucci, 144 A.D.3d 1285, 1286 , lv
denied 29 N.Y.3d 907');">29 N.Y.3d 907 ). "In any event, the
regulatory time limits are directory, rather than mandatory,
and petitioner has failed to show that he suffered prejudice
as a result of the... delay" (Matter of Blocker v
Fischer, 100 A.D.3d 1118, 1119  [citation
omitted], lv denied 21 N.Y.3d 857');">21 N.Y.3d 857 ). Further,
while there indeed are some inaudible gaps in the hearing
transcript, we do not find them to be "so significant as
to preclude meaningful review" (Matter of Heyliger v
Kirkpatrick, 153 A.D.3d 989, 990 ; see Matter
of Grate v Annucci, 152 A.D.3d 1127, 1128 ).
Finally, "the record does not disclose that the Hearing
Officer was biased or that the determination flowed from any
alleged bias" (Matter of Lyons v Annucci, 152
A.D.3d 1099, 1100 ; see Matter of Freeman v
Annucci, 151 A.D.3d 1509, 1511 ). Petitioner's
remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in
McCarthy, J.P., Lynch, Devine, Aarons and Pritzker, JJ.,
that the determination is confirmed, without costs, ...