Lashway v. Brown

278 A.D.2d 639, 717 N.Y.S.2d 700, 2000 N.Y. App. Div. LEXIS 13127

Opinion

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered March 15, 2000 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a determination which found him guilty of violating the prison disciplinary rule prohibiting violent conduct. Supreme Court dismissed the petition and we affirm. Petitioner’s sole contention that his disciplinary hearing was untimely (see, 7 NYCRR 251-5.1 [a]) is unpersuasive. Initially, the hearing was not required to be commenced within seven days of petitioner’s confinement for mental health observation because the confinement was unrelated to the incident giving rise to the misbehavior report (see, Matter of West v Costello, 270 AD2d 673, 674; Matter of Faison v Senkowski, 256 AD2d 702, appeal dismissed 93 NY2d 870). In any event, the delay was authorized by a valid extension providing that the hearing was to be completed within 14 days following petitioner’s release from confinement (see, 7 NYCRR 251-5.1 [a]), and the hearing was timely completed pursuant to a second extension properly obtained for the purpose of securing the testimony of one of petitioner’s witnesses (see, 7 NYCRR 251-5.1 [b]; see also, Matter of Stokes v Goord, 254 AD2d 558, lv denied 92 NY2d 819; Matter of Greene v Coombe, 238 AD2d 813, lv denied 91 NY2d 801).

Mercure, J. P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.