Arce v. Selsky

268 A.D.2d 724, 700 N.Y.S.2d 774, 2000 N.Y. App. Div. LEXIS 282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 2000
• Status: Published

Opinion

—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 certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting the possession of unauthorized medication and property damage. Petitioner commenced this CPLR article 78 proceeding contending that he did not receive adequate inmate assistance and that the Hearing Officer was biased.

* We disagree.

Petitioner’s contention that the hearing was not to begin until 24 hours after his assistance had been completed has been repeatedly rejected by this Court (see, Matter of Proctor v Coombe, 234 AD2d 749; Matter of Neal v Coombe, 231 AD2d 795). The rule states that a hearing is not to begin until 24 hours after petitioner’s first meeting with the assistant (see, 7 NYCRR 254.6 [a]; Matter of Proctor v Coombe, supra). In any event, the timing of the hearing did not compromise the level of assistance petitioner received and a review of the record shows that the assistance was adequate. Likewise, the record does not support a finding that petitioner did not receive a fair and impartial hearing or that the Hearing Officer was biased.

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

Supreme Court improperly transferred the proceeding on substantial evidence grounds. Petitioner raises solely procedural issues in the petition (see, Matter of Barnhill v Coombe, 239 AD2d 719, 720, n). In any event, in the interest of judicial economy, this Court will retain the proceeding (see, Matter of Nieves v Goord, 262 AD2d 1042).