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

QUAVES SIMMS, #95-A-1321,

Petitioner

v.

Index No. 19,019

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 Michael J. Russo

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 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&nbsp25, 2000 and contended that the hearing should be annulled. Respondent requests that the petition be denied upon the

answer dated July 24, 2000.

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.

DATED: August 31, 2000

Warsaw, New York



Acting Supreme Court Justice


Memorandum and Judgment

Index No. 19,019