Ortiz v. Goord

Appellate Division of the Supreme Court of New York

Ortiz v. Goord

281 A.D.2d 678, 720 N.Y.S.2d 846, 2001 N.Y. App. Div. LEXIS 2022

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 1, 2001

StatusPublished

This text of 281 A.D.2d 678 (Ortiz v. Goord) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ortiz v. Goord, 281 A.D.2d 678, 720 N.Y.S.2d 846, 2001 N.Y. App. Div. LEXIS 2022 (N.Y. Ct. App. 2001).

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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 a prison disciplinary rule.

After a pat frisk, petitioner was charged with violating the prison disciplinary rule which prohibits the possession of controlled substances. At the conclusion of a tier III hearing, petitioner was found guilty of the charge, a finding which was affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding to review the determination.

Although the petition raised a substantial evidence issue, petitioner’s brief is limited to alleged procedural deficiencies in the hearing. Any error in the alleged failure to provide petitioner with assistance prior to the commencement of the hearing was rectified when the hearing was adjourned and petitioner was provided with assistance (see, Matter of Llull v Coombe, 238 AD2d 761, lv denied 90 NY2d 804). Inasmuch as the hearing was not reconvened until more than 24 hours after petitioner met with his assistant, there was no violation of the 24-hour rule (see, Matter of Hein v Goord, 249 AD2d 661). In any event, petitioner has failed to identify any prejudice from [679]*679the allegedly deficient procedures (see, Matter of Gill v Selsky, 240 AD2d 831). Finally, there was no error in the denial of petitioner’s request for two witnesses since their testimony regarding the initial failure to provide petitioner with assistance was irrelevant to the controlled substance charge (see, Matter of Beckles v Selsky, 273 AD2d 584, lv denied 95 NY2d 764). Contrary to petitioner’s claim, the witnesses’ testimony was not necessary to preserve the alleged procedural error which, as noted above, was cured by the adjournment of the hearing and provision of assistance to petitioner.

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

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—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 a prison disciplinary rule.

After a pat frisk, petitioner was charged with violating the prison disciplinary rule which prohibits the possession of controlled substances. At the conclusion of a tier III hearing, petitioner was found guilty of the charge, a finding which was affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding to review the determination.

Although the petition raised a substantial evidence issue, petitioner’s brief is limited to alleged procedural deficiencies in the hearing. Any error in the alleged failure to provide petitioner with assistance prior to the commencement of the hearing was rectified when the hearing was adjourned and petitioner was provided with assistance (see, Matter of Llull v Coombe, 238 AD2d 761, lv denied 90 NY2d 804). Inasmuch as the hearing was not reconvened until more than 24 hours after petitioner met with his assistant, there was no violation of the 24-hour rule (see, Matter of Hein v Goord, 249 AD2d 661). In any event, petitioner has failed to identify any prejudice from [679]*679the allegedly deficient procedures (see, Matter of Gill v Selsky, 240 AD2d 831). Finally, there was no error in the denial of petitioner’s request for two witnesses since their testimony regarding the initial failure to provide petitioner with assistance was irrelevant to the controlled substance charge (see, Matter of Beckles v Selsky, 273 AD2d 584, lv denied 95 NY2d 764). Contrary to petitioner’s claim, the witnesses’ testimony was not necessary to preserve the alleged procedural error which, as noted above, was cured by the adjournment of the hearing and provision of assistance to petitioner.

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

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Bluebook (online)

281 A.D.2d 678, 720 N.Y.S.2d 846, 2001 N.Y. App. Div. LEXIS 2022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-goord-nyappdiv-2001.

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