Opinion
June 14, 2001.
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 respondent which found petitioner guilty of violating a prison disciplinary rule.
Jesse Shannon, Malone, petitioner in person.
Eliot Spitzer, Attorney-General (Patrick Barnett-Mulligan of counsel), Albany, for respondent.
Before: Crew III, J.P., Peters, Carpinello, Mugglin and, Rose, JJ.
MEMORANDUM AND JUDGMENT
Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting inmates from organizing a demonstration. Contrary to petitioner's contention, the misbehavior report and evidence adduced at the hearing constitute substantial evidence to support the determination of guilt (see, Matter of Orr v. Selsky, 263 A.D.2d 742; Matter of Rose v. Goord, 259 A.D.2d 806, lv denied 93 N.Y.2d 810). As for petitioner's assertion that he was improperly excluded from a portion of the hearing, we are similarly unconvinced. The record reveals that, following an adjournment, petitioner refused to leave his cell to attend the remainder of the hearing and refused to sign a waiver form. Accordingly, the Hearing Officer's decision to continue the hearing in absentia was warranted (see, Matter of Rossi v. Portuondo, 275 A.D.2d 823, 824, lv denied 96 N.Y.2d 703; Matter of Dexter v. Goord, 257 A.D.2d 936). Moreover, inasmuch as petitioner refused to attend the remainder of the hearing, he has waived the right to challenge the proceeding as not having been timely completed (see, Matter of Kalwasinski v. Senkowski, 244 A.D.2d 738, 739). In any event, it is well settled that the 14-day time limit (see, 7 NYCRR 251-5.1[b]) is directory, not mandatory, and petitioner has failed to demonstrate any prejudice flowing from the alleged delay (see,Matter of Byas v. Goord, 272 A.D.2d 800, 801, lv denied 95 N.Y.2d 765). Petitioner's remaining arguments have been considered and found to be meritless or unpreserved for our review.
Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.