Neal v. Coombe

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. Petitioner, a prison inmate, was found guilty of possessing a weapon after a correction officer found a plexiglass shank-type object in his cell. Petitioner challenges this determination, arguing that it is not supported by substantial evidence because of discrepancies in the description of the item contained in the misbehavior report and that related by the Hearing Officer. He further contends, inter alia, that he was not given the requisite 24 hours to confer with his employee assistant prior to the commencement of the hearing and that the Hearing Officer was biased. Initially, inasmuch as petitioner failed to raise his claim concerning discrepancies in the description of the object at the administrative hearing, he has failed to preserve this claim for review (see, Matter of Islar v Coombe, 226 AD2d 851; Matter of Sanchez v Selsky, 226 AD2d 794). Nevertheless, were we to consider the merits, we would find this claim to be without merit since it is clear from the record that the differing descriptions of the object are attributable to the fact that two different measurements of it were taken with a ruler, one at the 0-inch mark and the other at the 1-inch mark. Therefore, we find that the misbehavior report constitutes substantial evidence supporting the determination. Contrary to petitioner’s second claim, the record further reveals that respondents complied with regulatory requirements and did not commence the hearing until more than 24 hours after petitioner’s first meeting with his employee assistant (see, 7 NYCRR 254.6 [a]; Matter of Raqiyb v Coughlin, 214 AD2d 788, 789, lv denied 86 NY2d 702). Likewise, based upon our review of the hearing transcript, we do not find that the [796] Hearing Officer was either biased or unfair. We have considered petitioner’s remaining claims and find that they are either unpreserved for our review or lacking in merit. Cardona, P. J., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.