McGowan v. Goord

282 A.D.2d 848, 722 N.Y.S.2d 924, 2001 N.Y. App. Div. LEXIS 3693

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from refusing a direct order and failing to follow staff directions regarding movement within the facility. Petitioner challenges the determination claiming that a number of procedural errors require its annulment.

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Contrary to petitioner’s assertion, the delay in commencement of the hearing was authorized by a valid extension granted as the result of petitioner’s transfer to another facility (see, 7 NYCRR 251-5.1; Matter of Llull v Coombe, 238 AD2d 761, 761-762, lv denied 90 NY2d 804). We also reject petitioner’s claim that he received ineffective employee assistance because his assistant failed to provide him with certain documents, as the record indicates that petitioner received all the relevant and available documents to which he was entitled (see, Matter of Rosario v Selsky, 266 AD2d 656). Likewise, the Hearing Officer was not required to provide petitioner with a written explanation for the denial of nonexistent documents.

Cardona, P. J., Crew III, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although the proceeding was properly transferred to this Court inasmuch as the CPLR article 78 petition could be construed as challenging the determination on substantial evidence grounds, petitioner’s brief raises only procedural issues and, accordingly, we deem the substantial evidence argument to have been abandoned (see, Matter of Giano v Selsky, 273 AD2d 570, lv denied 95 NY2d 764).