Opinion
11-10-2016
In the Matter of Dennis MEEHAN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Dennis Meehan, Fallsburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Dennis Meehan, Fallsburg, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., EGAN JR., LYNCH, DEVINE and CLARK, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of buprenorphine. He was found guilty of the charge following a tier II disciplinary hearing. At the conclusion of the hearing, he was advised that he could take an appeal to the superintendent of the correctional facility within 72 hours. Petitioner filed an administrative appeal, but the superintendent rejected it and mistakenly informed him that the appeal “must be sent to Special Housing in Albany.” Petitioner thereafter commenced this CPLR article 78 proceeding.
Although the petition did not raise the issue of substantial evidence and the proceeding was improperly transferred, we nevertheless retain jurisdiction in the interest of judicial economy (see
Initially, petitioner contends that he was deprived of due process as he was improperly denied administrative review of the disciplinary determination given the superintendent's rejection of his appeal. The applicable regulations provide that an appeal from a determination made after a tier II disciplinary hearing is to be addressed to the superintendent of the facility (see 7 NYCRR 253.8 ) and the superintendent erred in giving petitioner a contrary instruction. Nevertheless, an administrative body's failure to render a decision on an administrative appeal does not necessarily preclude a party from obtaining judicial review of the underlying determination (see e.g. Matter of Furman v. Annucci, 138 A.D.3d 1269, 1270, 28 N.Y.S.3d 352 [2016], lv. dismissed 27 N.Y.3d 1188, 38 N.Y.S.3d 97, 59 N.E.3d 1209 [2016] ; Matter
of King v. Stanford, 137 A.D.3d 1396, 1397, 26 N.Y.S.3d 815 [2016] ). Petitioner has commenced this CPLR article 78 proceeding to review the subject determination and respondent has not opposed it on the ground that petitioner failed to exhaust his administrative remedies. Rather, respondent has acknowledged the superintendent's error and is treating the determination as if it were administratively affirmed. Accordingly, under these circumstances, petitioner has suffered no prejudice (see Matter of Dunwoody v. Goord, 20 A.D.3d 833, 834, 799 N.Y.S.2d 313 [2005] ), and there has been no due process violation.
Petitioner also contends that he was improperly denied the right to call as a witness a representative from the manufacturer of the testing equipment. We find this claim to be unavailing inasmuch as the Hearing Officer attempted to obtain this testimony, but the manufacturer refused to make a witness available to testify at the disciplinary hearing (see Matter of Timmons v. Annucci, 139 A.D.3d 1224, 1224, 29 N.Y.S.3d 832 [2016], lv. denied 28 N.Y.3d 903, 2016 WL 4921699 [2016] ; Matter of Smith v. Prack, 138 A.D.3d 1286, 1287, 31 N.Y.S.3d 235 [2016] ). Likewise, petitioner was not improperly denied test documentation from other correctional facilities that was irrelevant to the charge against him (see Matter of Henderson v. Fischer, 98 A.D.3d 1162, 1163, 950 N.Y.S.2d 809 [2012] ). We have considered petitioner's remaining arguments, to the extent that they are properly before us, and find them to be unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Matter of Toliver v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d 1536, 1537 n. 1, 6 N.Y.S.3d 331 [2015] ).