Moretti v. Coughlin

232 A.D.2d 685, 647 N.Y.S.2d 1013, 1996 N.Y. App. Div. LEXIS 10063

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1996
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Lewis, J.), entered March 2, 1995 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner is an inmate at Clinton Correctional Facility in Clinton County. As the result of an investigation in which petitioner was recorded during a telephone conversation soliciting an unidentified individual to purchase heroin from his cousin, petitioner was found guilty of violating prison disciplinary rules prohibiting inmates from possessing, selling or exchanging controlled substances and from smuggling. Petitioner raises a number of procedural challenges to this determination arguing, inter alia, that the hearing was hot timely commenced and that he was denied effective employee assistance.

Inasmuch as the hearing started on the sixth day after petitioner was served with the misbehavior report, we reject his claim that the hearing was not timely commenced (see, 7 NYCRR 251-5.1 [a]). Further, because petitioner has failed to demonstrate that his assistant’s omissions prejudiced his defense, he cannot prevail on his claim of ineffective employee assistance (see, Matter of Bryant v Mann, 199 AD2d 676; Matter of Serrano v Coughlin, 152 AD2d 790). We have considered petitioner’s remaining contentions and find them to be unavailing.

Mikoll, J. P., Mercure, White, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.