Hughes v. Bedard

Appellate Division of the Supreme Court of New York

Hughes v. Bedard

117 A.D.3d 1246, 984 N.Y.S.2d 887

Appellate Division of the Supreme Court of the State of New York·Decided May 15, 2014·Published·Cited by 1 cases

Opinion

[1247] Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 16, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Following a tier III prison disciplinary hearing, petitioner was found guilty of drug use and violating family reunion program procedures. Upon administrative appeal, the determination was administratively reversed and a rehearing ordered due to an incomplete electronic recording of the hearing.

In cases such as this one, where the Commissioner of Corrections and Community Supervision has yet to “issue[ ] a final determination, it is entirely proper for the Commissioner to order a rehearing upon his administrative review of an inmate disciplinary proceeding, even where an error sought to be corrected is of constitutional magnitude” (Matter of Stephens v Goord, 273 AD2d 656, 657 [2000], lv denied 95 NY2d 766 [2000]; see Matter of Higgins v Selsky, 27 AD3d 913, 914 [2006]). As we find no basis to conclude that a rehearing was improperly ordered, Supreme Court properly dismissed the proceeding (see Matter of Stephens v Goord, 273 AD2d at 657).

Lahtinen, J.P, McCarthy, Garry and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed, without costs.

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[1247] Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 16, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Following a tier III prison disciplinary hearing, petitioner was found guilty of drug use and violating family reunion program procedures. Upon administrative appeal, the determination was administratively reversed and a rehearing ordered due to an incomplete electronic recording of the hearing.

In cases such as this one, where the Commissioner of Corrections and Community Supervision has yet to “issue[ ] a final determination, it is entirely proper for the Commissioner to order a rehearing upon his administrative review of an inmate disciplinary proceeding, even where an error sought to be corrected is of constitutional magnitude” (Matter of Stephens v Goord, 273 AD2d 656, 657 [2000], lv denied 95 NY2d 766 [2000]; see Matter of Higgins v Selsky, 27 AD3d 913, 914 [2006]). As we find no basis to conclude that a rehearing was improperly ordered, Supreme Court properly dismissed the proceeding (see Matter of Stephens v Goord, 273 AD2d at 657).

Lahtinen, J.P, McCarthy, Garry and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed, without costs.

Hughes v. Bedard, 117 A.D.3d 1246, 984 N.Y.S.2d 887 (N.Y. Ct. App. 2014).

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Opinion

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