At a term of Supreme Court held in and
for the County of Wyoming, at Attica, New York, on the 23rd day of August, 2000.
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
Petitioner
v.
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
Assistant Attorney General
Statler Towers, 4th Floor
107 Delaware Avenue
Buffalo, New York 14202
By petition pursuant to Article 78 of the CPLR verified on February 18, 2000, Quaves Simms seeks review of a superintendent's hearing completed on December 28, 1999. Petitioner appeared with counsel assigned by an order to show cause dated April 25, 2000 and contended that the hearing should be annulled. Respondent requests that the petition be denied upon the
Petitioner initially contends that the hearing was not commenced within seven days, as required by 7 NYCRR 251-5.1(a), after he was confined pursuant to the misbehavior report filed on December 19, 1999. The record shows that this argument is without merit because the hearing was scheduled in accordance with the terms of an extension granted in a timely manner on December 24, 1999.
Petitioner's remaining claims are without merit. The record shows that his assistant provided him with his requested assistance by providing him with copies of numerous reports prior to the hearing (see Exhibit F). In any event, the petitioner only requested one witness who refused to testify because he had no knowledge of the incidents alleged in the misbehavior report (see Exhibit H, p. 13). Thus, the petitioner has failed to show that he was prejudiced by the alleged lack of assistance (see Matter of Law v. Racette, 120 A.D.2d 846, 848 [1986]; Matter of Samuels v. Kelly, 143 A.D.2d 506 [1988], motion for leave to appeal denied 73 N.Y.2d 707; Matter of DiRose v. Coombe, 233 A.D.2d 799, 800 [1996]). The record also shows that the hearing officer only considered the petitioner's prior disciplinary history in determining an appropriate penalty at the dispositional stage of the proceeding (see Exhibit H, pp. 36-37). Petitioner has not established that the disposition resulted from bias or prejudice on the part of the hearing officer (see Matter of Benitez v. Coughlin, 159 A.D.2d 986 [1990]; Matter of Hughes v. Suffolk County Department of Civil Service, 74 N.Y.2d 833 [1989]; Matter of Fitzgerald v. Coughlin, 191 A.D.2d 941 [1993], motion for leave to appeal denied 82 N.Y.2d 651).
NOW, THEREFORE, it is hereby
ORDERED that the petition is denied.
Warsaw, New York
Acting Supreme Court Justice
Memorandum and Judgment