Lugo v. Coughlin

182 A.D.2d 920, 582 N.Y.S.2d 555, 1992 N.Y. App. Div. LEXIS 5719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1992
• Status: Published

Opinion

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

We reject petitioner’s argument that expungement is necessary because the second extension granted for the hearing was invalid, as it was obtained after the first extension had expired (see, 7 NYCRR 251-5.1). Initially, we note that petitioner was informed of the extension and the reason for it, which was to provide testimony requested by petitioner. Even if it was accepted that the grant was improper, in the absence of any substantive prejudice resulting from the minimum delay there is no reason to expunge (see, Matter of Rosado v Kuhlmann, 164 AB2d 199, lv denied 77 NY2d 806). Furthermore, the time limitations are not mandatory but are directory only (see, Matter of Taylor v Coughlin, 135 AD2d 992; but see, Matter of Hicks v Scully, 159 AD2d 624). Finally, the misbehavior reports, coupled with the hearing testimony of the correction officers who authored the reports and witnessed the events, provide substantial evidence to support the finding of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603). Petitioner’s contention that the charges were in retaliation for his filing a letter detailing alleged abuses by correction officers merely raised a question of credibility for the Hearing Officer to resolve (see, Matter of De Torres v Coughlin, 135 AD2d 1068, lv denied 72 NY2d 801). Petitioner’s remaining contentions have been considered and rejected as lacking in merit.

Weiss, P. J., Yesawich Jr., Mahoney, Casey and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.