Abreu v. Coughlin

• Decision Date: 25 January 1990
• Parties: In the Matter of Ernesto ABREU, Appellant, v. Thomas A. COUGHLIN, III, as Commissioner of Correctional Services of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 514

550 N.Y.S.2d 514

157 A.D.2d 1028

In the Matter of Ernesto ABREU, Appellant, v. Thomas A. COUGHLIN, III, as Commissioner of Correctional Services of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 25, 1990.

Ernest Abreu, Attica, in pro per.

Robert Abrams, Atty. Gen. (Martin A. Hotvet, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court (Plumadore, J.), entered January 18, 1989 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Following a tier III Superintendent's hearing, petitioner, an inmate at Clinton Correctional Facility in Clinton County, was found guilty of violating State-wide prison rule 100.11 (fighting) (see, 7 NYCRR 270.1[b][1][ii] and punishment was imposed. This determination was affirmed upon administrative appeal and petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition on the merits and this appeal by petitioner followed.

The petition was properly dismissed. Initially, we reject petitioner's contention that the hearing was untimely commenced. The record demonstrates that an extension in order to provide petitioner with a Spanish interpreter was duly authorized, in writing, by the designee of respondent Commissioner of Correctional Services. The reason for the delay was properly on the record (7 NYCRR 251-5.1[b]; see, Matter of Reveron v. Coughlin, 142 A.D.2d 860, 861, 530 N.Y.S.2d 900). Similarly meritless are petitioner's claims that he was denied his right to call witnesses at his hearing and that the Hearing Officer improperly took part in an off-the-record communication with a correction officer. Neither claim is supported by the record. All the witnesses requested by petitioner were called and testified. Although petitioner stated at the hearing that another, initially unknown, correction officer was involved in the incident, petitioner did not request that this individual testify, even after his name was provided to him (see, Matter of Gomez v. Coughlin, 140 A.D.2d 902, 904, 528 N.Y.S.2d 722). As for the alleged off-the-record communication, the Hearing Officer told petitioner that he had only asked the officer in question about his vacation and petitioner's case was not discussed. This exchange was undisputed and we fail to find any violation of petitioner's rights (see, Matter of Berrios v. Kuhlmann, 143 A.D.2d 475, 532 N.Y.S.2d 593).

Next, we consider petitioner's argument that the determination was not supported by substantial evidence. We note that, although this argument was apparently not clearly before Supreme Court in petitioner's pro se papers, and therefore no transfer occurred (CPLR 7804[g], a close examination of petitioner's reply papers sufficiently, although inartfully, raises the issue (cf., Matter of Nelson v. Coughlin, 115 A.D.2d 131, 495 N.Y.S.2d 528). Nonetheless, we find petitioner's contention to be lacking in merit. The misbehavior...