Opinion
February 5, 1998
Petitioner was found guilty of possessing a weapon in violation of prison disciplinary rules after X rays revealed a utility-type razor concealed inside his rectal cavity. The penalty imposed consisted of 18 months' confinement in the special housing unit, with seven months suspended, and the loss of certain privileges. We reject the contention that the hearing was untimely. The seven-day rule for commencement of the hearing was inapplicable because petitioner was already confined on an unrelated matter (see, 7 NYCRR 251-5.1 [a]; Matter of Barreto v. Goord, 244 A.D.2d 610; Matter of Covington v. Stinson, 221 A.D.2d 739, lv denied 87 N.Y.2d 810). Moreover, although the hearing did not conclude within 14 days of the writing of the misbehavior report (see, 7 NYCRR 251-5.1 [b]), it was completed in accordance with a valid extension granted in order to enable petitioner's witness to testify (see, Matter of Barreto v. Goord, supra; Matter of Greene v. Coombe, 238 A.D.2d 813, lv denied 91 N.Y.2d 801). Last, in view of the serious nature of the offense and petitioner's prior disciplinary history involving similar offenses, we do not find that the penalty imposed was so disproportionate to the subject offense as to be shocking to one?s sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; Matter of Sutherland v. Coughlin, 211 A.D.2d 955, 956).
Cardona, P.J., Mikoll, Mercure, Yesawich Jr. and Carpinello, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.