Concepcion v. Selsky

Nov 6, 2003
Versions:1 A.D.3d 685
1 A.D.2d 685
766 N.Y.S.2d 921
2003 N.Y. App. Div. LEXIS 11591

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits assaulting another inmate after a confidential source identified petitioner as the one who punched another inmate through a cell window. The misbehavior report, testimony at the hearing and confidential information provide substantial evidence of petitioner’s guilt (see Matter of Ward v Murphy, 302 AD2d 839, 839 [2003]). Although the Hearing Officer did not personally interview the confidential informant, a review of the confidential material establishes that the Hearing Officer made an independent assessment of the reliability and *686credibility of the information provided (see Matter of Nogueras v Selsky, 306 AD2d 586, 586 [2003]). To the extent that petitioner claims that the hearing was untimely completed without proper extensions, the 14-day time limitation for completion of a hearing is directory and not mandatory (see 7 NYCRR 251-5.1 [b]; Matter of Rudolph v Goord, 284 AD2d 640, 640 [2001], appeal dismissed 96 NY2d 936 [2001]; Matter of Bazelais v Goord, 278 AD2d 723, 723-724 [2000]). In any event, petitioner has established no substantial prejudice resulting from the delay (see Matter of Matos v Goord, 293 AD2d 855, 856 [2002]; Matter of Bazelais v Goord, supra at 723-724).

Mercure, J.P, Peters, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.