In the Matter of Arthur Ray Montgomery v. Fischer

• Decision Date: 26 May 2011
• Citation: 84 A.D.3d 1666,2011 N.Y. Slip Op. 04340,923 N.Y.S.2d 918
• Parties: In the Matter of Arthur Ray MONTGOMERY, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1666

923 N.Y.S.2d 918

2011 N.Y. Slip Op. 04340

In the Matter of Arthur Ray MONTGOMERY, Petitioner,

v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 26, 2011.

OPINION TEXT STARTS HEREArthur Ray Montgomery, Comstock, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.Before: Peters, J.P., Spain, McCarthy, Garry and Egan Jr., JJ.GARRY, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of engaging in a sexual act with another inmate in violation of prison disciplinary rules following a tier III disciplinary hearing. Upon administrative review, this determination was upheld. Petitioner thereafter commenced this CPLR article 78 proceeding challenging that determination.

The misbehavior report, together with the testimony of the officer who prepared it, the confidential testimony and the documentary evidence, provide substantial evidence to support the determination of guilt ( see Matter of Rodriguez v. Fischer, 76 A.D.3d 1131, 1132, 908 N.Y.S.2d 271 [2010]; Matter of Smart v. New York State Dept. of Correctional Servs., 75 A.D.3d 1017, 1017–1018, 907 N.Y.S.2d 526 [2010]; Matter of Sanders v. Goord, 47 A.D.3d 987, 988, 849 N.Y.S.2d 329 [2008] ). Petitioner's assertion that the misbehavior report was insufficient is unavailing. A review of the misbehavior report and the attached memoranda confirms the date, time and place of the incident and the disciplinary rules alleged to have been violated, and the factual basis for the charges are set forth with enough detail to notify petitioner of the charges and enable him to prepare a defense ( see Matter of Edwards v. Leclaire, 71 A.D.3d 1199, 1200, 894 N.Y.S.2d 779 [2010]; Matter of Page v. Fischer, 64 A.D.3d 1067, 1067, 883 N.Y.S.2d 626 [2009] ).

With regard to petitioner's claim that the hearing was not timely completed, the record indicates that a timely extension was obtained. In any event, the regulatory time limits are directory, not mandatory ( see Matter of Rodriguez v. Fischer, 76 A.D.3d at 1132, 908 N.Y.S.2d 271; Matter of Sanders v. Goord, 47 A.D.3d at 988, 849 N.Y.S.2d 329). While the hearing transcript does contain gaps, it was not so...