[*1]
Matter of Van Gorder v New York State Dept. of Correctional Servs.
2006 NY Slip Op 52657(U) [21 Misc 3d 1122(A)]
Decided on September 18, 2006
Supreme Court, Franklin County
Feldstein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 18, 2006
Supreme Court, Franklin County


In the Matter of the Application of Fred E. Van Gorder, Petitioner,

against

New York State Department Of Correctional Services, and LIEUTENANT NORCROSS, Respondents.




2006-413

S. Peter Feldstein, J.



This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Fred E. Van Gorder, verified on April 28, 2006, and stamped as filed in the Franklin County Clerk's office on May 3, 2006. Petitioner, who is an inmate at the Bare Hill Correctional Facility, is challenging the results of a Tier II Disciplinary Hearing held at the Bare Hill Correctional Facility and concluded on March 9, 2006. The Court issued an Order to Show Cause on May 9, 2006, and has received and reviewed respondents' Answer and Return, verified on June 23, 2006, as well as respondents' Letter Memorandum of June 23, 2006. The Court has also received and reviewed petitioner's Reply thereto, filed in the Franklin County Clerk's office on July 7, 2006.

As the result of an incident that occurred at the Bare Hill Correctional Facility on February 13, 2006, petitioner was issued an inmate misbehavior report charging him with violations of inmate rules 106.10 (refusing to obey a direct order), 104.13 (creating a disturbance) and 107.11 (insolent language). The inmate misbehavior report reads, in relevant part, as follows:

". . . I C.O. Gardner was sitting at the officer's station when inmate VanGorder . . . came up to my desk and stated that he needed my signature now on this advancement form for legal mail.['] I told inmate VanGorder I had to look at it because I had never seen one before. Inmate VanGorder then stated, I don't have time for this shit. Just sign it.' Inmate VanGorder was talking in a loud disturbing manner causing the other inmates in the dorm to look our way. I gave him a direct order to keep his voice down and go to his cube. He then stated, You will sign it now.' I gave him a second direct order to keep his voice down and go to his cube. With reluctance inmate VanGorder went to his cube . . ."

A Tier II Disciplinary Hearing was commenced at the Bare Hill Correctional Facility on February 15, 2006. At the conclusion of the hearing on March 9, 2006, the petitioner [*2]was found guilty of all three charges and a disposition was imposed confining him for a total of 30 days (from February 13, 2006 to March 15, 2006) and directing the loss of various privileges for 30 days (from February 21, 2006, to March 23, 2006). Upon administrative appeal the results and disposition of the Tier II Disciplinary Hearing were affirmed. This proceeding ensued.

The petitioner advances a variety of arguments in support of his ultimate contention that the results and disposition of the Tier II Disciplinary Hearing concluded on March 9, 2006, must be vacated. He first asserts that the inmate misbehavior report was fatally defective since the last line thereof, while setting forth the proper report date, did not include the name, signature or title of the author of the report. The record reveals that this alleged defect was brought to the attention of the hearing officer on February 15, 2006, when the Tier II Disciplinary Hearing was commenced. After noting that his copy of the report was, in fact, signed the hearing officer confirmed that the petitioner's copy did not include the usual carbon reproduction of the author's name, signature and title. The hearing officer then stated for the record that the original report was signed by C.O. F. Gardner but nevertheless decided to ". . . adjourn this hearing, give you [petitioner] an additional 24 hours for you to prepare your case, and I'll call you back down at another time." When the hearing was re-convened on February 21, 2006, the petitioner again argued that the hearing should be dismissed based upon the alleged defective inmate misbehavior report. The petitioner also denied that the events described in the inmate misbehavior report ever took place. At that time the hearing was again adjourned in order to obtain the testimony of C.O. Gardner. The hearing was not re-convened until March 9, 2006. At that time Officer Gardner testified that he signed the original misbehavior report at the time it was written. C.O. Gardner sought to explain the fact that the carbon reproduction of his signature did not appear on the petitioner's copy of the report by stating as follows: "Probably when I was filling out the bottom, I probably flipped it up and it wouldn't go through, I was filling out the bottom and you have to flip that up and that's probably [what] I did."

In the absence of any allegation or suggestion that the petitioner's ability to defend himself against the charges set forth in the inmate misbehavior report was prejudiced, the Court finds that the lack of the reporting officer's name, signature and title on the last line of the petitioner's copy of the report constituted a non-fatal, technical error. See Davis v. Goord, 302 AD2d 836. Although C.O. Gardner's "explanation" for the error is somewhat speculative, the Court notes that C.O. Gardner's name appears in the body of the inmate misbehavior report in a context that identifies him as the reporting officer. In addition, the hearing officer specifically identified C.O. F. Gardner as the author of the inmate misbehavior report and afforded the petitioner an adjournment to prepare his defense with that information in hand. There is no support in the record, moreover, for petitioner's assertion that the original inmate misbehavior report was altered after his copy had been served.

The petitioner also asserts that his Tier II Disciplinary Hearing was completed in an untimely fashion inasmuch as the respondents allegedly used "deceptive practice" to obtain the commissioner's authorization to complete the hearing beyond the otherwise applicable regulatory deadline. 7 NYCRR §251-5.1(b) provides as follows:

"The disciplinary hearing or superintendent's hearing must be completed [*3]within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee. Where a delay is authorized, the record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional safety or correctional goals."


In the case at bar there is no dispute that the inmate misbehavior report was written on February 13, 2006. Thus, unless an extension was authorized, the disciplinary hearing should have been completed on or before February 27, 2006. As noted previously, the hearing was initially commenced on February 15, 2006, and continued on February 21, 2006. The February 21, 2006, disciplinary hearing session ended with the hearing officer stating "okay then we'll take a break and see if we can get hold of officer Gardner. The time is now 8:17 a.m." When the hearing was next re-convened, on March 9, 2006, the hearing officer stated at the outset that ". . . the reason this hearing is being held so late is ah . . . due to an extension of this hearing, the report was written back on February 13, 2006, I applied for and received an extension 06EA0496, ah . . . sustaining . . . to the hearing to be completed by today . . ." Notwithstanding the foregoing, an examination of the document annexed to the respondents' Answer and Return as Exhibit D reveals that there were two extension requests. The first request, on February 21, 2006, recited that an employee witness was unavailable until February 28, 2005, and that the hearing officer was unavailable until March 2, 2005. An authorization to complete the hearing by March 2, 2006, was granted without comment. On March 2, 2006, a second extension was sought due to the unavailability of the hearing officer and an employee witness until March 9, 2006. An extension was then authorized to complete the hearing by March 9, 2006, with the following comment: ". . . CONTINUE ATTEMPTS TO CONTACT EMPLOYEE WITNESS BY PHONE TO COMPLETE SOONER." Both extension requests correctly recited that the petitioner had been confined effective February 13, 2006, but incorrectly recited that the extension requests were made in connection with a Tier III Superintendent's Hearing, rather than a Tier II Disciplinary Hearing. The petitioner maintains that it his "belief" that the "deception" with respect to the tier level ". . . was done by Bare Hill Disciplinary Office because Albany would not have granted Two extensions for a Tier II Misbehavior Report." The Court, however, finds petitioner's "belief" to be purely speculative and, as such, insufficient to raise a factual issue. See Izzo v. Lynn, 271 AD2d 801 and Carr v. New York State Board of Parole, 231 AD2d 767. In addition, although the admittedly incorrect tier level reference was unfortunate, the provisions of 7 NYCRR §251-5.1 apply equally to both Tier III Superintendent's Hearings and Tier II Disciplinary Hearings, and the Court finds no basis to conclude that the extension request would have been considered in a different light if it had properly referenced a Tier II, rather than Tier III, proceeding.

Finally, the petitioner maintains that ". . . upon completion of the hearing, I was subjected to a penalty of Forty-Three days of loss of all privileges, and cube confined. It is clear that pursuant to [7 NYCRR §253.7(a)(1)(ii) and (iii)] . . . the maximum allowed imposition of sanctions is Thirty days." Even if this issue had been preserved for review in this proceeding, it is noted that the loss of privileges portion of the disposition was only for [*4]30 days and the Court finds no basis to conclude that the petitioner was, in effect, entitled to a credit against the loss of privileges imposed upon disposition as the result of any pre-disposition loss of privileges occasioned by his pre-disposition confinement. It also noted that the confinement portion of the disposition was structured so as not to exceed a total of 30 days.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is dismissed.



Dated:September 18 , 2006 at

Indian Lake, New York.__________________________

S. Peter Feldstein

Acting Supreme Court Justice