Davis v. Bennett

Appellate Division of the Supreme Court of New York

Davis v. Bennett

256 A.D.2d 791, 681 N.Y.S.2d 812, 1998 N.Y. App. Div. LEXIS 13341

Appellate Division of the Supreme Court of the State of New York·Decided December 10, 1998·Published·Cited by 4 cases

Opinion

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

Following a verbal altercation with another inmate, petitioner was found guilty of creating a disturbance and failing to comply with the mess hall seating policy in violation of certain prison disciplinary rules. Contrary to petitioner’s contention on appeal, the detailed misbehavior report written by the correction officer who observed the incident is sufficiently relevant and probative to constitute substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Ragland v Great Meadow Correctional Facility, 243 AD2d 977). Furthermore, although petitioner was not served with a decision upon his administrative appeal in accordance with the time limitation set forth in 7 NYCRR 253.8, such time limitation is directory rather than mandatory and petitioner has failed to demonstrate any prejudice caused by the delay (see, e.g., Matter of Reynoso v Senkowski, 210 AD2d 709, lv denied 85 NY2d 805; Matter of Sheppard v Le Fevre, 116 AD2d 867, 868). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Mikoll, J. P., Mercure, Crew III, Spain and Graffeo, 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 Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a verbal altercation with another inmate, petitioner was found guilty of creating a disturbance and failing to comply with the mess hall seating policy in violation of certain prison disciplinary rules. Contrary to petitioner’s contention on appeal, the detailed misbehavior report written by the correction officer who observed the incident is sufficiently relevant and probative to constitute substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Ragland v Great Meadow Correctional Facility, 243 AD2d 977). Furthermore, although petitioner was not served with a decision upon his administrative appeal in accordance with the time limitation set forth in 7 NYCRR 253.8, such time limitation is directory rather than mandatory and petitioner has failed to demonstrate any prejudice caused by the delay (see, e.g., Matter of Reynoso v Senkowski, 210 AD2d 709, lv denied 85 NY2d 805; Matter of Sheppard v Le Fevre, 116 AD2d 867, 868). Petitioner’s remaining contentions have been reviewed and found to be without merit.

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

Davis v. Bennett, 256 A.D.2d 791, 681 N.Y.S.2d 812, 1998 N.Y. App. Div. LEXIS 13341 (N.Y. Ct. App. 1998).

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