Shannon v. Goord

Jun 14, 2001
Versions:284 A.D.2d 680
728 N.Y.S.2d 507
2001 N.Y. App. Div. LEXIS 6248

—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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting inmates from organizing a demonstration. Contrary to petitioner’s contention, the misbehavior report and evidence adduced at the hearing constitute substantial evidence to support the determination of guilt (see, Matter of Orr v Selsky, 263 AD2d 742; Matter of Rose v Goord, 259 AD2d 806, lv denied 93 NY2d 810). As for petitioner’s assertion that he was improperly excluded from a portion of the hearing, we are similarly unconvinced. The record reveals that, following an adjournment, petitioner refused to leave his cell to attend the remainder of the hearing and refused to sign a waiver form. Accordingly, the Hearing Officer’s decision to continue the hearing in absentia was warranted (see, Matter of Rossi v Portuondo, 275 AD2d 823, 824, lv denied 96 NY2d 703; Matter of Dexter v Goord, 257 AD2d 936). Moreover, inasmuch as petitioner refused to attend the remainder of the hearing, he has waived the right to challenge the proceeding as not having been timely completed (see, Matter of Kalwasinski v Senkowski, 244 AD2d 738, 739). In any event, it is well settled that the 14-day time limit (see, 7 NYCRR 251-5.1 [b]) is directory, not mandatory, and petitioner has failed to demonstrate any prejudice flowing from the alleged delay (see, Matter of Byas v Goord, 272 AD2d 800, 801, lv denied 95 NY2d 765). Petitioner’s remaining arguments have been considered and found to be meritless or unpreserved for our review.

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