Opinion
04-21-2016
In the Matter of Michael L. WILSON Jr., Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Michael L. Wilson Jr., Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Michael L. Wilson Jr., Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with assaulting staff, refusing a direct order, being out of place and violating movement regulations. According to the misbehavior report, petitioner refused to return to his cell when ordered and, after he was placed in restraints and escorted to his cell, he propelled himself backwards, striking a correction officer in the chest and forcing the officer into the gallery fence. Following a tier III disciplinary hearing, petitioner was found not guilty of being out of place and violating movement regulations, but guilty of the remaining charges. That determination was affirmed on administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.
Although the petition does not raise an issue of substantial evidence and the proceeding was, therefore, improperly transferred, we retain jurisdiction and address the merits of petitioner's claims in the interest of judicial economy (see Matter of Hand v. Greene, 118 A.D.3d 1245, 1245 n., 989 N.Y.S.2d 151 [2014] ).
--------
We confirm. Although petitioner argues that certain correction officers who had personal knowledge of the incident should have either endorsed the misbehavior report or filed their own reports, inasmuch as the record reflects that all the correction officers cited by petitioner testified at the hearing, petitioner has not demonstrated any prejudice (see Matter of Cane v. Fischer, 115 A.D.3d 1097, 1098, 982 N.Y.S.2d 405 [2014] ; Matter of Pante v. Goord, 73 A.D.3d 1394, 1395, 902 N.Y.S.2d 684 [2010] ). The record further establishes that the hearing was commenced and completed in a timely manner and that proper extensions were obtained (see Matter of Jamison v. Fischer, 119 A.D.3d 1306, 1306, 989 N.Y.S.2d 706 [2014] ; Matter of Shepherd v. Fischer, 111 A.D.3d 1213, 1214, 975 N.Y.S.2d 703 [2013], lv. denied 22 N.Y.3d 864, 2014 WL 1243633 [2014] ). Finally, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 [2015], appeal dismissed 26 N.Y.3d 964, 18 N.Y.S.3d 600, 40 N.E.3d 578 [2015] ; Matter of Garcia v. Garner, 122 A.D.3d 988, 989, 995 N.Y.S.2d 829 [2014] ). Petitioner's remaining claims have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., GARRY, DEVINE and CLARK, JJ., concur.