Tavares v. Piatek

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in four misbehavior reports with violating the prison disciplinary rules prohibiting inmates from possessing weapons, engaging in violent conduct, making threats, destroying State property, committing arson and assaulting staff in connection with incidents that occurred in April 1996 while petitioner was incarcerated at Fishkill Correctional Facility in Dutchess County. Following a tier III disciplinary hearing, petitioner was found guilty of all charges; upon administrative review, however, the decision was reversed and a new hearing was ordered. A second hearing resulted in a decision finding petitioner guilty of all but the assault on staff charge. The decision was administratively affirmed although the penalty imposed was modified. Petitioner now argues that the Commissioner of Correctional Services erred in ordering a rehearing, contending that the charges should have been dismissed because the first hearing was reversed due to constitutional violations. We do not agree. Where, as here, the procedural errors in the first hearing are discovered before a final administrative determination is rendered, a new hearing to correct such errors is proper, even where the errors are of constitutional dimension (see, Matter of Dawes v Selsky, 233 AD2d 598; Matter of Arroyo v Coombe, 233 AD2d 638; Matter of Brodie v Selsky, 203 AD2d 671). The remaining contentions advanced by petitioner have been examined and found to be either unpreserved for our review or lacking in merit. As a final note, however, we do find that the record contains substantial evidence to support the determination reached in the second hearing. Cardona, P. J., Mercure, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.