PRESENT: HONORABLE MARK H. DADD

Acting Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF WYOMING

_____________________________________________

 

In the Matter of the Application of

MICHAEL SCOTT, #94-A-6196,

Petitioner

v.

Index No. 19,040

GLENN S. GOORD, Commissioner,

Department of Correctional Services, Respondent

FOR RELIEF PURSUANT TO ARTICLE 78 CPLR

_____________________________________________

For the Petitioner

WYOMING COUNTY-ATTICA LEGAL

AID BUREAU, INC.

Norman P. Effman, Director

14 Main Street

Attica, New York 14011

For the Respondent

ELIOT SPITZER, Attorney General

by Ann C. Williams

Assistant Attorney General

Statler Towers, 4th Floor

107 Delaware Avenue

Buffalo, New York 14202



MEMORANDUM AND JUDGMENT

By petition pursuant to Article 78 of the CPLR sworn to on April&nbsp26, 2000, Michael Scott seeks review of a superintendent's hearing completed on January 13, 2000. Petitioner appeared by counsel assigned by an order to show cause dated May 25, 2000 and contended that the hearing should be annulled. Respondent requests that the petition be denied upon the

answer dated July 17, 2000.

The petition is without merit. Petitioner initially claims that the hearing was not completed within the fourteen day period set forth in 7 NYCRR 251.5.1(b). The record shows that the hearing was completed in accordance with the terms of an extension granted in a timely manner on January 11, 2000, within fourteen days following the December&nbsp28, 1999 misbehavior report (see Matter of Ya'Qub Shamsid-Deen v. Selsky, 195 A.D.2d 1084 [1993]). Furthermore, petitioner has failed to establish any prejudice from the brief delay in completion of the hearing (see Matter of Comfort v. Irvin, 197 A.D.2d 907 [1993], motion for leave to appeal denied 82 N.Y.2d 662). Petitioner's administrative appeal failed to preserve any claim that the hearing officer conducted the proceeding in an unfair or partial manner (see Matter of Samuels v. Kelly, 143 A.D.2d 506 [1988], motion for leave to appeal denied 73 N.Y.2d 707; Matter of Cushing-Gale v. Kelly, 155 A.D.2d 996 [1989]).

NOW, THEREFORE, it is hereby

ORDERED that the petition is denied.

DATED: August 9, 2000

Warsaw, New York



Acting Supreme Court Justice


Memorandum and Judgment

Index No. 19,040