Anderson v. Coughlin

Judgment unanimously affirmed. Memorandum: Petitioner was confined on September 18, 1991. A misbehavior report was served on him on September 23rd charging telephone abuse on and after August 24, 1991. A hearing was commenced on September 27th; when he challenged the timeliness of the hearing (see, 7 NYCRR 251-5.1 [a]), it was adjourned. He was served with a superseding misbehavior report charging telephone abuse and several drug-related violations on July 28, 1991 and "subsequent dates in this investigation.” On October 4th a request was made for an extension of time to commence the hearing on the second report; permission was granted to commence the hearing by October 8th. On October 8th, the first misbehavior report was dismissed as untimely and the hearing on the second report was commenced. Additional extensions to complete the hearing by October 22nd were granted and it was completed on that date. 1076 Because petitioner’s confinement began on September 18th, any hearing had to be commenced within seven days of that date unless an extension was authorized by the Commissioner or his designee before that period expired. The time period in 7 NYCRR 251-5.1 (a) is mandatory, not directory (Matter of Hicks v Scully, 159 AD2d 624; Matter of Wysinger v Scully, 150 AD2d 468; Matter of Brito v Sullivan, 141 AD2d 819; Matter of Coley v Sullivan, 126 AD2d 641; Matter of Lozada v Scully, 108 AD2d 859; Matter of Grosvenor v Dalsheim, 90 AD2d 485; cf., Matter of Rosado v Kuhlmann, 164 AD2d 199, lv denied 77 NY2d 806), and failure to comply with that subdivision mandates dismissal of the charges and their ex-pungement from petitioner’s record. (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.—Article 78.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.