Goberdhan v. Goord

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. While cleaning an office where a female correction officer was seated at a desk, petitioner allegedly touched her genital area and made a sexually suggestive comment. He was charged in a misbehavior report with assaulting staff and was found guilty of the charge following a tier III disciplinary hearing. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. We confirm. We find no merit to petitioner’s assertion of hearing officer bias. The record does not reveal that the Hearing Officer acted inappropriately, but rather conducted the hearing in a fair and impartial manner (see Matter of Marcial v Goord, 2 AD3d 1243, 1244 [2003]). Moreover, insofar as the misbehavior report and victim’s testimony provide substantial evidence supporting the determination of guilt, there is no indication that the outcome of the hearing flowed from any alleged bias (see Matter of Nieves v Goord, 2 AD3d 1173, 1174 [2003]; Matter of Ramos v Goord, 309 AD2d 1096, 1097 [2003]). Likewise, contrary to petitioner’s claim, the administrative appeal was timely determined. Petitioner’s administrative appeal was received by the Department of Correctional Services on September 9, 2002 and was decided by respondent on October 29, 2002, within the 60 days required by 7 NYCRR 254.8. There is nothing to substantiate petitioner’s assertion that he did not receive the determination within the 60-day time period. Even [898] if he did not, such time period is directory, rather than mandatory, and does not warrant disturbing the determination of guilt absent a showing of substantial prejudice, which has not been made here (see Matter of Ortiz v Goord, 302 AD2d 830, 830-831 [2003]; see also Matter of McCorkle v Selsky, 264 AD2d 890, 891 [1999] ). Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.