Higgins v. Selsky

Mugglin, J. Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered February 7, 2005 in Chemung County, which dismissed petitioner’s application, in a proceeding pursu [914] ant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules. Petitioner, an inmate, was charged in three misbehavior reports with assaulting staff, making threats and refusing a direct order after he attacked correction officers who were transferring him to a different cell. Petitioner was found guilty of all charges following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal. Petitioner thereafter requested reconsideration, and the determination was administratively reversed due to the hearing officer’s failure to adequately inquire into the refusal of certain witnesses to testify at the hearing. In connection therewith, all records relating to the original hearing were expunged and a rehearing was ordered. Following the rehearing, petitioner was again found guilty as charged and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, which Supreme Court dismissed. Petitioner now appeals, contending that expungement of the charges, not a rehearing, was required to remedy the defect in the original hearing. In our view, Matter of Dawes v Coughlin (83 NY2d 597 [1994]) is dispositive of this appeal. By seeking reconsideration and being granted a rehearing, petitioner was afforded a full and fair opportunity to present his case. Inasmuch as the administrative determination was not final when reconsideration was granted, even errors of constitutional magnitude may be addressed and corrected at the rehearing (see Matter of Stephens v Goord, 273 AD2d 656 [2000], lv denied 95 NY2d 766 [2000]; Matter of Brown v Coughlin, 214 AD2d 874 [1995]). We have considered petitioner’s remaining arguments and find none with merit. Spain, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.