Opinion
November 14, 1996.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Before: Mikoll, J.P., Mercure, White, Spain and Carpinello, JJ.
Petitioner was charged in an inmate misbehavior report with violating prison disciplinary rules prohibiting assaults on other inmates and fighting. After being found guilty as charged following a tier III hearing, this determination was administratively reversed and a rehearing ordered. The rehearing was conducted following which petitioner was found guilty of assaulting another inmate. On administrative appeal, the penalty imposed, four years' confinement in the special housing unit with four years' loss of good time, was modified to three years' confinement in the special housing unit with three years' loss of good time, and the determination was affirmed. Petitioner has commenced this CPLR article 78 proceeding challenging this determination, and we now confirm.
Where, as here, respondent Commissioner of Correctional Services has not issued a final determination, it is entirely proper for the Commissioner to order a rehearing upon his administrative review of an inmate disciplinary proceeding, even where an error sought to be corrected is of constitutional magnitude ( see, Matter of Brodie v Selsky, 203 AD2d 671, 672). Accordingly, we reject petitioner's contention that the Commissioner erred in ordering a rehearing in this proceeding. Likewise unavailing is petitioner's claim that he was denied his right to call a particular witness at the rehearing as the record makes clear that the proffered testimony of this former inmate would have been redundant with the testimony of other inmates who testified ( see, 7 NYCRR 254.5 [a]).
Adjudged that the determination is confirmed, without costs, and petition dismissed.