Concepcion v. Selsky

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2003
• 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 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 credibility 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.