McDermott v. Coughlin
| Decision Date | 20 March 1987 |
| Citation | 135 Misc.2d 659,516 N.Y.S.2d 834 |
| Parties | Re: Matter of Wayne McDERMOTT v. Thomas COUGHLIN, Commissioner, New York State Department of Correctional Services and Ronald Miles, Superintendent, Elmira Correctional Facility. |
| Court | New York Supreme Court |
Prisoners' Legal Services of New York (Brendan O'Donnell, of counsel), Ithaca, for petitioner.
New York State Atty. Gen., Robert Abrams (James B. McGowan, Asst. Atty. Gen., of counsel), New York State Dept. of Law, Binghamton, for respondents.
Petitioner brings this special proceeding pursuant to CPLR Article 78 for a judgment (1) declaring null and void an October 2, 1985 Superintendent's Hearing (7 NYCRR Part 254, "Tier III" disciplinary hearing) on the basis that said hearing was conducted in violation of lawful procedures; (2) restoring to petitioner all privileges and good behavior time allowances lost as a result of the administrative disposition following said hearing; (3) expunging from petitioner's institutional, departmental and parole records any and all references to said hearing and the underlying charges which were based, assertedly, on alleged violations of invalid rules; and (4) ordering such other and further relief as we find just, proper and equitable.
Respondents seek dismissal of the petition on its merits on the basis of their affirmative defenses and corresponding objections in point of law, namely, that (1) respondents have complied with all lawful procedures and petitioner has failed to state a cause of action (CPLR 3211[a][7] ); and (2) the relief requested is barred by the doctrines of laches and law of the case (cf. CPLR 3211[a][5] ). Alternatively, respondents seek permission to charge petitioner on the basis of new misbehavior reports alleging violations of a separate, filed rule and provisions of the Penal Law.
For quite some time, with the consent of counsel, we withheld decision herein pending a final, appellate disposition in People v. Motley, 119 A.D.2d 57, 505 N.Y.S.2d 251, lv. to app. granted 68 N.Y.2d 919, 508 N.Y.S.2d 1040, 501 N.E.2d 613; and People v. [David E.] McDermott, (unreported decision, Chemung County Court, April 10, 1986), lv. to app. granted 68 N.Y.2d 758, 506 N.Y.S.2d 1046, 497 N.E.2d 716). The New York Court of Appeals heard argument on February 12, 1987 in those cases, together with another Chemung County Court criminal proceeding raising similar issues (People v. [Warren] Wilder, 122 A.D.2d 489, 505 N.Y.S.2d 389, lv. to app. granted 68 N.Y.2d 919, 508 N.Y.S.2d 1041, 501 N.E.2d 613). In reviewing the recent submissions by counsel for both sides herein, however, and in recognition of the likelihood that even a prompt decision in the above-referenced cases may focus on issues not relevant here (e.g. guilty plea acting as waiver; inter-relationship of statutory definitions and administrative rules; see also: People v. Brown, 123 A.D.2d 473, 506 N.Y.S.2d 483; Matter of Collins v. Hammock, 52 N.Y.2d 798, 436 N.Y.S.2d 704, 417 N.E.2d 1245), we are now inclined to render our decision herein without further delay.
On February 4, 1985 an incident occurred as petitioner was leaving the mess hall at the Elmira Correctional Facility (ECF). Two misbehavior reports concerning that incident charged petitioner with violations of three separate institutional rules prohibiting assault (two counts) (Rule 100.10), refusal to obey a direct order (two counts) (Rule 106.10), and possession of contraband (one count) (Rule 113.10). At that time those rules had not been filed with the Secretary of State in accordance with Article 4, Section 8 of the New York State Constitution and Executive Law, § 102. Those three rules are presently codified, however, at 7 NYCRR 270.1[b][1][i], [b][7] and [b][14][ii] respectively.
Soon after the incident petitioner was confined in the special housing unit (SHU) pending a Tier III disciplinary hearing on February 8, 1985. Following that, the hearing officer (HO) found petitioner guilty of all five charges (counts) and imposed a penalty of 365 days of SHU confinement, concomitant loss of privileges and 12 months loss of good time credit. Thereafter petitioner commenced an Article 78 (CPLR) proceeding which came before us on September 10, 1985. By that time petitioner had served 7 months of the SHU confinement penalty. The parties to that special proceeding were the same as those involved here. Respondent's then counsel, another Assistant Attorney General, agreed that the February 8, 1985 HO had overlooked petitioner's request for witness testimony and that a subsequent, unauthorized alteration of the HO's disposition sheet warranted a new hearing. By Judgment dated September 19, 1985 (Chemung County Index No. 85-1899) we annulled the prior disciplinary proceeding and ordered that a new Superintendent's Hearing be conducted and completed in a timely manner pursuant to 7 NYCRR 251-5.1.
Following the new hearing on September 27 and October 2, 1985, a new HO again found petitioner guilty of all five charges and imposed the same penalties as before. On administrative appeal the HO's disposition was affirmed by decision dated December 30, 1985. Thereafter, petitioner commenced this special proceeding in the latter part of April 1986. Following an adjournment on consent of counsel, the matter came before us on July 14, 1986. Petitioner's sole basis for the relief requested herein is that the rules he has been charged with violating were not filed at the time of the underlying incident. (See: People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 176 N.E.2d 495; Matter of Jones v. Smith, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191). Therefore, his argument goes, the unfiled rules were invalid and ineffective and the disciplinary proceeding at issue here must be annulled. (See: People ex rel. Roides v. Smith, 67 N.Y.2d 899, 501 N.Y.S.2d 805, 492 N.E.2d 1221; Matter of Davidson v. Smith, 69 N.Y.2d 677, 512 N.Y.S.2d 13, 504 N.E.2d 380; see also: Matter of Raheem v. Scully, 121 A.D.2d 636, 503 N.Y.S.2d 1005).
Respondents' first affirmative defense in the nature of an objection in point of law (CPLR 3211[a][7] ) has no merit. Petitioner's previous special proceeding (Chemung County Index No. 85-1899) challenged inter alia various procedural improprieties with respect to the conduct of the February 8, 1985 ECF disciplinary hearing. Here, however, petitioner makes no such challenge. Rather, petitioner's counsel cites ample authority (noted above) for the annulment and expungement relief requested due to the substantive invalidity of the rules petitioner allegedly violated. Thus, it is clear beyond cavil that petitioner states a valid cause of action. (see: Carp v. Marcus, 112 A.D.2d 546, 491 N.Y.S.2d 484; Roland Pietropaoli Trucking Inc. v. Nationwide Mutual Insurance Company, 100 A.D.2d 680, 473 N.Y.S.2d 879 [pleadings liberally construed] ).
Respondents' second set of affirmative defenses/objections in point of law, although intended to counterbalance the weight of petitioner's cited authorities, do not withstand analysis. On the question of laches, that common law doctrine has been largely superseded by the CPLR's period of limitations (see: Dailey v. Smiley, 65 A.D.2d 915, 410 N.Y.S.2d 468; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105, affd on opin below 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282) and has no applicability to the circumstances present here. While it is true that laches could be a defense in an Article 78 proceeding in the nature of mandamus (see: Matter of Holz v. Kowal, 27 A.D.2d 128, 131, 276 N.Y.S.2d 398; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 497, 320 N.Y.S.2d 99), this special proceeding is in the nature of certiorari where a final official act, rather than a demand and refusal, triggers the applicable period of limitation. (see: Austin v. Board of Higher Education of the City of New York, 5 N.Y.2d 430, 442, 186 N.Y.S.2d 1, 158 N.E.2d 681; 8 Weinstein-Korn-Miller, N.Y.Civ.Pract., par 7804.02). There being no dispute that petitioner commenced this proceeding within 4 months of respondents' determination following petitioner's administrative appeal, the proceeding has been timely brought. (CPLR 217).
Even if it were relevant (and we are not convinced that it is) to consider that petitioner did not include his current unfiled rules argument among the challenges contained in his prior special proceeding, respondents have not shown how they relied on that omission and thereby changed their position to their detriment. (cf. Airco Alloys Division, Airco, Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 82, 430 N.Y.S.2d 179). Whether or not petitioner could have been charged under unspecified Penal Law provisions or 7 NYCRR 250.1[a][1][ii] () as respondents' counsel suggests, the fact is he has not been so charged. We would add that the possibility of a discretionary criminal prosecution, except for questions as to jurisdiction (see: CPLR 7803[2] ), would not normally be the object of an Article 78 proceeding such as we have here. Moreover, it seems that 7 NYCRR 250.1[a][1][ii], on its face, is a general policy statement intended to aid in applying the more specific standards of inmate behavior now properly promulgated in 7 NYCRR Part 270. In any event, since respondents' previous counsel had agreed that a new disciplinary hearing was warranted to cure...
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