Opinion
2014-01-22
In the Matter of Robert HAIGLER, petitioner, v. Brian FISCHER, etc., respondent.
Robert Haigler, Romulus, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Bethany A. Davis Noll of counsel), for respondent.
Robert Haigler, Romulus, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Bethany A. Davis Noll of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of Albert Prack, the Director of the Special Housing/InmateDisciplinary Program, on behalf of Brian Fischer, as Commissioner of the New York State Department of Corrections and Community Supervision, dated January 6, 2012, which affirmed so much of a determination of a hearing officer dated November 11, 2011, made after a disciplinary hearing, as found that the petitioner was guilty of violating prison disciplinary rules 102.10 and 107.11 (7 NYCRR 270.2[B][3][i]; [8] [ii] ).
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
Although the disciplinary hearing under review was not “completed within 14 days following the writing of the misbehavior report” (7 NYCRR 251–5.1[b] ), the record supports the conclusion that any delay in this regard had appropriately been “authorized by the commissioner or his designee” (7 NYCRR 251–5.1[b] ). In any event, the provisions of this rule are directory rather than mandatory ( see e.g. Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358; Matter of Rodriguez v. Fischer, 76 A.D.3d 1131, 1132, 908 N.Y.S.2d 271; Matter of Rosario v. Selsky, 37 A.D.3d 921, 921–922, 829 N.Y.S.2d 280). Therefore, in the absence of any showing of prejudice as a result of the delay, the petitioner is not entitled to vacatur of the determination on this procedural ground ( see e.g. Matter of Edwards v. Fischer, 87 A.D.3d at 1329, 930 N.Y.S.2d 358; Matter of Sanders v. Goord, 47 A.D.3d 987, 988, 849 N.Y.S.2d 329; Matter of Crosby v. Selsky, 26 A.D.3d 571, 572, 808 N.Y.S.2d 827; but see Matter of Hicks v. Scully, 159 A.D.2d 624, 552 N.Y.S.2d 684 ).
The petitioner's remaining contentions are either without merit or not properly before this Court ( see generally Matter of Reed v. Artus, 39 A.D.3d 1056, 835 N.Y.S.2d 472). MASTRO, J.P., LOTT, AUSTIN and ROMAN, JJ., concur.