Barrett v. Senkowski

Appellate Division of the Supreme Court of New York

Barrett v. Senkowski

180 A.D.2d 977, 580 N.Y.S.2d 569, 1992 N.Y. App. Div. LEXIS 2888

Appellate Division of the Supreme Court of the State of New York·Decided February 27, 1992·Published·Cited by 3 cases

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Contrary to petitioner’s contention, his disciplinary hearing was commenced within seven days of his confinement as required by 7 NYCRR 251-5.1 (a). There was also no error in adjourning the hearing so that petitioner could meet with his employee assistant (see, Matter of Agosto v Coughlin, 153 AD2d 1008, 1009) or in extending the hearing due to the [978] unavailability of the Hearing Officer. We have previously held that where, as here, delay was authorized and reasonable and resulted in no prejudice to petitioner, there is no basis to annul a determination of guilt (see, Matter of Taylor v Coughlin, 135 AD2d 992, 993). In any event, petitioner failed to object to either the adjournment or the extension, thereby waiving any claim of error in this regard (see, Matter of Hop Wah v Coughlin, 153 AD2d 999, lv denied 75 NY2d 705). Petitioner’s other claims of procedural error have been considered and rejected as lacking in merit. Finally, we find that the misbehavior report, coupled with petitioner’s own testimony as to his actions toward the correction officer who authored the report, constitutes substantial evidence to support the determination (see, People ex rel. Vega v Smith, 66 NY2d 130, 139-140; Matter of Johnson v Coughlin, 157 AD2d 991, 992).

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

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Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Contrary to petitioner’s contention, his disciplinary hearing was commenced within seven days of his confinement as required by 7 NYCRR 251-5.1 (a). There was also no error in adjourning the hearing so that petitioner could meet with his employee assistant (see, Matter of Agosto v Coughlin, 153 AD2d 1008, 1009) or in extending the hearing due to the [978] unavailability of the Hearing Officer. We have previously held that where, as here, delay was authorized and reasonable and resulted in no prejudice to petitioner, there is no basis to annul a determination of guilt (see, Matter of Taylor v Coughlin, 135 AD2d 992, 993). In any event, petitioner failed to object to either the adjournment or the extension, thereby waiving any claim of error in this regard (see, Matter of Hop Wah v Coughlin, 153 AD2d 999, lv denied 75 NY2d 705). Petitioner’s other claims of procedural error have been considered and rejected as lacking in merit. Finally, we find that the misbehavior report, coupled with petitioner’s own testimony as to his actions toward the correction officer who authored the report, constitutes substantial evidence to support the determination (see, People ex rel. Vega v Smith, 66 NY2d 130, 139-140; Matter of Johnson v Coughlin, 157 AD2d 991, 992).

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

Barrett v. Senkowski, 180 A.D.2d 977, 580 N.Y.S.2d 569, 1992 N.Y. App. Div. LEXIS 2888 (N.Y. Ct. App. 1992).

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