Opinion
821 TP 20-00254
10-09-2020
In the Matter of Christian CABALLERO, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier III disciplinary hearing, that he violated several inmate rules. To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 ( 7 NYCRR 270.2 [B] [5] [ii] [violent conduct] ), 104.13 ( 7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance] ), and 106.10 ( 7 NYCRR 270.2 [B] [7] [i] [refusing a direct order] ) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention (see Matter of Ingram v. Annucci , 151 A.D.3d 1778, 1778, 53 N.Y.S.3d 872 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782565 [2017] ; Matter of Williams v. Annucci , 133 A.D.3d 1362, 1363, 19 N.Y.S.3d 840 [4th Dept. 2015] ). Although we agree with petitioner that his hearing was not commenced or concluded within the regulatory time period, "it is well settled that, ‘[a]bsent a showing that substantial prejudice resulted from the delay, the regulatory time limits are construed to be directory rather than mandatory’ " ( Matter of Sierra v. Annucci , 145 A.D.3d 1496, 1497, 44 N.Y.S.3d 827 [4th Dept. 2016] ; see Matter of McMillian v. Lempke , 149 A.D.3d 1492, 1493, 52 N.Y.S.3d 771 [4th Dept. 2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017] ). Here, petitioner has failed to show any prejudice from the delay and, as a result, "the failure to [commence and] complete the hearing in a timely manner does not warrant annulment of the determination" ( Matter of Watson v. Annucci , 173 A.D.3d 1606, 1607, 99 N.Y.S.3d 913 [4th Dept. 2019] ). Contrary to the final contention of petitioner, we conclude that "the inmate misbehavior report[ ] provided him with adequate notice of the charges as required by 7 NYCRR 251-3.1 (c)" ( Matter of Jones v. Fischer , 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 [4th Dept. 2013] ).