Opinion
989 TP 17–02185
10-05-2018
In the Matter of Charles CALDARA, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
CHARLES CALDARA, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.
CHARLES CALDARA, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, 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 two inmate rules. Contrary to petitioner's contention, the determination that he violated inmate rules 107.20 ( 7 NYCRR 270.2 [B][8][iii] [lying] ) and 119.10 ( 7 NYCRR 270.2 [B][20][i] [false alarm] ) is supported by substantial evidence (see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). "No expert witness testimony was required [with respect to the handwriting in the bomb threat letter inasmuch] as hearing officers are permitted to independently assess handwriting samples" ( Matter of Hood v. Goord, 36 A.D.3d 1064, 1065, 826 N.Y.S.2d 517 [3d Dept. 2007] ).
Contrary to petitioner's further contention, the record "does not establish ‘that the Hearing Officer was biased or that the determination flowed from the alleged bias’ " ( Matter of Colon v. Fischer , 83 A.D.3d 1500, 1501, 921 N.Y.S.2d 441 [4th Dept. 2011] ). Additionally, petitioner contends that he was improperly placed in the special housing unit prior to the hearing. We reject that contention inasmuch as petitioner's bomb threat letter posed an immediate threat to the safety and security of the prison (see 7 NYCRR 251–1.6 [a]; see generally Matter of Kalonji v. Fischer , 102 A.D.3d 1041, 1042, 957 N.Y.S.2d 920 [3d Dept. 2013] ).
We also reject the contention that the hearing was untimely. The 14–day time limit to complete the hearing is "directory only" ( Matter of Comfort v. Irvin , 197 A.D.2d 907, 908, 602 N.Y.S.2d 264 [4th Dept. 1993], lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459 [1993] ) and, "absent a showing of substantial prejudice to petitioner, the failure to complete the hearing in a timely manner does not warrant annulment of the determination" ( Matter of Dash v. Goord , 255 A.D.2d 978, 978, 682 N.Y.S.2d 322 [4th Dept. 1998] ; see Matter of Lugo v. Coughlin , 182 A.D.2d 920, 921, 582 N.Y.S.2d 555 [3d Dept. 1992] ). Finally, petitioner was not improperly denied the right to call witnesses at the hearing (see Matter of Ramos v. Venettozzi , 153 A.D.3d 1075, 1076, 59 N.Y.S.3d 862 [3d Dept. 2017], lv. denied 31 N.Y.3d 906, 2018 WL 2069645 [2018] ; Matter of Moore v. New York State Dept. of Correctional Servs. , 50 A.D.3d 1350, 1351, 854 N.Y.S.2d 827 [3d Dept. 2008] ).