Opinion
531000
09-24-2020
In the Matter of Luis MORALES, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Luis Morales, Romulus, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Luis Morales, Romulus, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Lynch, Devine, Aarons and Colangelo, JJ.
MEMORANDUM AND JUDGMENT
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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with engaging in lewd conduct, committing a sexual offense and violating facility visiting room procedures after a correction officer observed petitioner and his visitor engaging in an indecent act in the prison visiting room. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
The proceeding was improperly transferred to this Court as petitioner did not raise the issue of substantial evidence in the verified petition. Nevertheless, in the interest of judicial economy, we retain jurisdiction and address the merits of petitioner's claims (see Matter of Mitchell v. Rodriguez, 175 A.D.3d 787, 787 n., 107 N.Y.S.3d 485 [2019] ; Matter of Bonds v. Annucci, 166 A.D.3d 1250, 1250 n., 89 N.Y.S.3d 730 [2018] ).
--------
We confirm. Petitioner's procedural challenges to the disciplinary determination are unavailing. The record discloses that valid extensions were obtained and the hearing was completed in a timely manner (see Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1284, 109 N.Y.S.3d 512 [2019] ; Matter of Hyson v. Annucci, 171 A.D.3d 1339, 1340, 97 N.Y.S.3d 794 [2019] ). The first extension was requested on the fourteenth day following the writing of the misbehavior report (see 7 NYCRR 251–5.1 [b] ). Even accepting petitioner's claim that the extension request was untimely by a few hours, this did not render the extension invalid (see Matter of Porter v. Goord, 6 A.D.3d 1013, 1014, 775 N.Y.S.2d 610 [2004], lv denied 3 N.Y.3d 602, 782 N.Y.S.2d 406, 816 N.E.2d 196 [2004] ). Moreover, petitioner was not improperly denied the right to call a lieutenant to testify as a character witness, as there is no indication in the record that she had personal knowledge of the incident (see Matter of Elias v. Fischer, 118 A.D.3d 1193, 1194, 987 N.Y.S.2d 517 [2014] ; Matter of Fero v. Prack, 110 A.D.3d 1128, 1128, 972 N.Y.S.2d 115 [2013] ). Contrary to petitioner's claim, the record reflects that petitioner was provided adequate employee assistance and was not prejudiced by any alleged deficiencies (see Matter of Ayuso v. Venettozzi, 170 A.D.3d 1407, 1408, 96 N.Y.S.3d 705 [2019] ; Matter of Scott v. Annucci, 164 A.D.3d 1553, 1554, 84 N.Y.S.3d 279 [2018] ). Furthermore, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Partak v. Venettozzi, 175 A.D.3d 1633, 1635, 109 N.Y.S.3d 481 [2019] ; Matter of Ayuso v. Venettozzi, 170 A.D.3d at 1408, 96 N.Y.S.3d 705 ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit.
Garry, P.J., Lynch, Devine, Aarons and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.