Opinion
23 TP 18–01652
06-07-2019
In the Matter of Kyle WATSON, Petitioner, v. Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
KYLE WATSON, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
KYLE WATSON, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rule 103.10 ( 7 NYCRR 270.2 [B][4][i] [extortion] ). Contrary to petitioner's contention, we conclude that Supreme Court properly transferred the entire proceeding to this Court inasmuch as the "petition raises a substantial evidence question, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804(g)" ( Matter of Quintana v. City of Buffalo , 114 A.D.3d 1222, 1223, 979 N.Y.S.2d 760 [4th Dept. 2014], lv denied 23 N.Y.3d 902, 987 N.Y.S.2d 2, 10 N.E.3d 190 [2014] ). We further conclude that the misbehavior report, the hearing testimony, the documentary evidence, and the confidential information together constitute substantial evidence supporting the determination (see generally People ex rel. Vega v. Smith , 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ).
We reject petitioner's contention that the hearing officer was biased (see Matter of Colon v. Fischer , 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441 [4th Dept. 2011] ). The fact that the hearing officer rejected petitioner's denial of guilt is insufficient to establish bias (see Matter of Edwards v. Fischer , 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 [4th Dept. 2011] ). In addition, the record does not support petitioner's contention that the hearing officer failed to make an independent assessment of the reliability of the confidential information (see generally Matter of Weaver v. Goord , 301 A.D.2d 770, 770–771, 754 N.Y.S.2d 67 [3d Dept. 2003], lv. denied 100 N.Y.2d 505, 762 N.Y.S.2d 874, 793 N.E.2d 411 [2003] ). Contrary to petitioner's further contention, he had no right to confront and cross-examine the confidential source (see Matter of Heard v. Annucci , 155 A.D.3d 1166, 1167, 62 N.Y.S.3d 819 [3d Dept. 2017] ). Finally, petitioner's contention that the determination must be annulled because the hearing was unreasonably delayed in violation of 7 NYCRR 251–5.1(b) is without merit. The hearing was extended to obtain the testimony of witnesses, which is permissible (see Matter of Wright v. New York State Dept. of Corr. & Community Supervision , 155 A.D.3d 1137, 1138, 62 N.Y.S.3d 828 [3d Dept. 2017], appeal dismissed 30 N.Y.3d 1090, 69 N.Y.S.3d 857, 92 N.E.3d 1247 [2018] ). Moreover, that regulation is "directory only" ( Matter of Comfort v. Irvin , 197 A.D.2d 907, 908, 602 N.Y.S.2d 264 [4th Dept. 1993], lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459 [1993] ), and where, as here, there is no showing of prejudice resulting from the delay, the failure to complete the hearing in a timely manner does not warrant annulment of the determination (see Matter of Rosales v. Annucci , 151 A.D.3d 1748, 1749, 56 N.Y.S.3d 403 [4th Dept. 2017], lv. denied 30 N.Y.3d 902, 67 N.Y.S.3d 128, 89 N.E.3d 518 [2017] ; Matter of Dash v. Goord , 255 A.D.2d 978, 978–979, 682 N.Y.S.2d 322 [4th Dept. 1998] ).