Petitioner, an inmate under the supervision of the Department of Corrections and Community Supervision (DOCCS), commenced this CPLR Article 78 proceeding seeking a judgment annulling, and expunging from prison records, a Tier III disciplinary determination rendered on October 18, 2013 while Petitioner was housed at Green Haven Correctional Facility [*2](Green Haven). Respondent answers and seeks the dismissal of the proceeding on the grounds that the determination is in compliance with the law and is not arbitrary or capricious. Oral arguments were held on June 16, 2014, and the parties were given an opportunity to make post-argument submissions.^[FN1]

While an inmate at Green Haven, Petitioner was issued an Inmate Misbehavior Report (IMR) on August 6, 2013 charging him with a violation of Rules 106.10 (refusal to obey a direct order), 102.10 (threats), 104.11 (violent conduct), 104.12 (shall not lead, organize, participate in action detrimental to facility), and 104.13 (shall not engage in conduct that disturbs facility) (see 7 NYCRR 270.2). The IMR stemmed from the allegations that, in response to Correction Officer Stevens' order directing that approximately 30 inmates move down one of the facility corridors to Ramadan services, one inmate encouraged the others return to the area and directed inmates to trap the Officer. Petitioner is then alleged to have moved toward the Officer in a fighting stance and threatened him. On September 13, 2013, Petitioner was found guilty of the charges following a Tier III disciplinary hearing. However, in response to Petitioner's appeal based on, among other things, timeliness grounds (see 7 NYCRR 251.5.1 [a]), that determination was administratively reversed on October 3, 2013, with the notation: "commence rehearing within 7 days and complete within 14 days of receipt of this notice" (Petition, Exhibit 13). Sometime after the initial hearing, Petitioner was transferred to Southport Correctional Facility.

Prior to the rehearing, Petitioner opted for the use of an employee assistant (see 7 NYCRR 251-4.1) and, on October 8, 2013, requested copies of certain documents and, as relevant to this proceeding, that the assistant deliver interview sheets to 30 potential inmate witnesses, all residing at Green Haven. As per the Assistant Form signed by the employee assistant on October 8, 2013, six inmates are listed to have been interviewed, and five of those six inmate witnesses listed — including Inmates Wright, Stanley, Miller, Myers, and Alston — agreed to testify (see Answer, Exhibit C; Petition, Exhibit 14). Petitioner disputes that he choose the six inmates listed on the Assistant Form, which he refused to sign.

The rehearing on the IMR commenced on October 10, 2013 at Southport before Hearing Officer Lieutenant Donohue. Petitioner alleged inadequate employee assistance, contending that, although he provided his assistant with handwritten interview questionnaires to be provided to 30 different potential inmate witnesses, the assistant refused to distribute those questionnaires.

On or about October 14, 2013, an "Interview Sheet[]" prepared by Petitioner was photocopied and provided to the six inmates listed on the Assistant Form as potential witnesses. The questions posed consisted of the following seven questions:

1.At any time did offender Hill approach C.O. B. Stevens with his fists balled?

2.Did any offender present on 8-6-13 trap C.O. B. Stevens by F & G gate?

3.Did offender Hill refuse and direct order?

4.Did offender Hill threaten C.O. B. Stevens?

5.Are you willing to testify?

6.Who authored your misbehavior report?

7.Were offenders written up who weren't present?

In response to the Interview Sheet, Inmate Wright advised that he was not present at the time of the incident, but that he received an IMR. Inmate Myers advised that he did not see Petitioner approach Officer Stevens and did not hear Petitioner threaten anyone. Inmates Stanley and Miller responded both by denying that Petitioner approached Officer Stevens with his fists balled, and denying that Petitioner either refused a direct order or threatened Officer Stevens.^[FN2] Inmates Stanley, Miller, and Myers answered question number 7 in the affirmative — whether offenders were written up who were not present. Inmate Alston did not provide written response to the questions, but stated that he would be willing to testify by telephone.

The rehearing was adjourned and recommenced on October 18, 2013, and the issue of inadequate employee assistance was raised and addressed as follows:

DONAHUE:Hill there was some question about your tier assistance. I had the tier assistant meet with you again and I believe he report [sic] back to you that he got statements from with [sic] your questions answered from five potential inmate witnesses. And that a sixth potential inmate witness refused to testify. That inmate Diallo signed the witness refusal to testify form, which was also signed by an officer at Green Haven indicating, "he was not at the gate during the time of incident. He did not see what he do or not [sic]." At this time is there any other testimony or evidence you want to present? Go ahead.

HILL:I would like to umm. I would like to note an objection. I asked my assistant to interview every witness that was there. He told me he was not going to interview all the witnesses. And he only interviewed five of the six.

DONAHUE:And the thirty inmate witnesses is excessive. I considered the amount that were interviewed for you to be an appropriate number. Now is there any testimony or evidence you want to present?

HILL:I want to object again because at the time thirty inmate witnesses were willing to testify.

DONAHUE:And your objections noted for the record. I've already made my ruling on that.

HILL:Why? I can not...

DONAHUE:If you. . . If you bring that up again I will have you removed from this hearing. Now move on. Is there any testimony or evidence that you want to present.

HILL:Well I can't. At this time I'm unable to present an adequate defense.

DONAHUE:Okay. I am going to ask you one more time is there any other testimony or evidence you want to present?

HILL:I am sorry at this time I'm unable to present an adequate defense.

DONAHUE:At this time then I am going to stop to consider all the evidence and make a written disposition. . .

On October 18, 2013, Petitioner was found guilty of the charges, and the Hearing Officer imposed a penalty of 24 months confinement to the SHU, 24 month loss of packages, commissary and telephone privileges, and also recommended 24 months loss of good time.

The Petition contains six causes of action alleging that procedural and other errors occurred during the disciplinary process that violated Petitioner's Constitutional rights, thus warranting annulment and expungement of the disposition. Specifically, Petitioner's first and second causes of action, respectively, allege that he was subjected to ineffective employee assistance based on his assistant's refusal to distribute Petitioner's handwritten interview sheets to all 30 potential inmate witnesses, and that he was denied his right to call witnesses. The third and forth causes of action, respectively, allege that Petitioner was denied his right to an impartial hearing and that, by abruptly ending the hearing, the hearing officer, in effect, denied Petitioner the right to a hearing. Petitioner's fifth cause of action alleges that the initial hearing was untimely, which could not be cured by the rehearing. Finally, Petitioner's sixth cause of asserts that the penalty imposed was excessive.

Initially, Petitioner's allegations of inadequate inmate assistance is not substantiated by the record. Pursuant to 7 NYCRR 251-4.1, when an inmate has been issued a misbehavior report and is confined pending a superintendent's hearing to be conducted pursuant to 7 NYCRR part 254, the inmate shall have the opportunity to pick an employee to assist the inmate. The employee assistant may, among other things, "assist the inmate in obtaining documentary evidence or written statements which may be necessary" (7 NYCRR 251-4.2). To successfully establish that the assistance provided was inadequate, Petitioner must show that the alleged inadequacies resulted in some prejudice (see Matter of Irby v Kelly, 161 AD2d 860, 861 [3d Dept 1990]). While Petitioner cites the assistant's failure to provide interview sheets to all 30 inmates alleged to be present at the time of the incident, the assistant provided interview sheets to six inmates, five of whom agreed to testify at the hearing, and at least two of whom were [*3]expected to testify favorably to Petitioner. In light of the potential for this favorable testimony, even if the failure to provide the remaining inmates with interview sheets rendered the assistance inadequate, Petitioner has failed to show how it prejudiced his defense (see Matter of McKinley v Stinson, 237 AD2d 815, 816 [3d Dept 1997]).

Likewise, the Court is not persuaded by Petitioner's argument that annulment is required because he was denied his conditional right to call witnesses pursuant to 7 NYCRR 254.5 (a). "An inmate generally has the right to call witnesses at a disciplinary hearing when doing so would not jeopardize institutional safety or correctional goals" (Matter of Buari v Fischer, 70 AD3d 1147, 1148 [3d Dept 2010]; see 7 NYCRR 254.5[a]). However, an inmate is not entitled to call witnesses whose testimony would be irrelevant or redundant (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [3d Dept 2013]). At the rehearing, the Hearing Officer asked Petitioner repeatedly whether he wished to produce any evidence or testimony. Petitioner was not precluded from calling any of the five inmate witnesses that were identified in the Assistant Form as willing to testify. Rather, Petitioner simply refused to proceed with the hearing, contending he was not able to prepare a defense, notwithstanding that it was anticipated that the testimony of at least two of those inmate witnesses, if not more, would be favorable to Petitioner. Since any further favorable testimony would be cumulative, the Hearing Officer properly denied Petitioner's request for those witnesses.^[FN4] For the same grounds, the Court finds Petitioner's assertion that he was effectively denied his superintendent's hearing unpersuasive. The Court also is not convinced that Petitioner was denied a fair and impartial hearing inasmuch as the record reflects that Petitioner refused to participate in the hearing, rather than that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Jackson v Fischer, 67 AD3d 1207, 1208 [3d Dept 2009]).

Turning to his fifth cause of action, Petitioner argues that the untimeliness of the initial hearing cannot be cured by the Commissioner reversing and ordering a new hearing, but instead warrants annulment and expungement. Specifically, Petitioner asserts that the initial hearing was commenced later than allowed by DOCCS regulations and concluded later than allowed by DOCCS regulations. As is relevant here, 7 NYCRR 251-5.1, entitled "Timeliness," provides:

In this case, Petitioner was confined on August 6, 2013 and the initial hearing was commenced on August 14, 2013, eight days later. As there is no evidence of the Commissioner's approval for the late commencement of the hearing, it violated 7 NYCRR 251-5.1 (a). The initial hearing was completed on September 13, 2013. While it was concluded beyond the 14-day period following the writing of the IMR, the record reveals that the Commissioner granted three extensions allowing the initial hearing to be completed by September 13, 2013. Consequently, the initial hearing was not untimely concluded in violation of 7 NYCRR 251-5.1 (b).^[FN6]

To the extent that the initial hearing was untimely commenced, however, it is currently the law in this Department that, with respect to Article 78 disciplinary challenges, the regulatory time limits set forth in 7 NYCRR 251-5.1 (a) are directory rather than mandatory, and Petitioner has failed to show that he suffered prejudice as a result of the one day delay (see Matter of Senior v Fischer, 98 AD3d 783, 784 [3d Dept 2012]). Petitioner argues that the Third Department's interpretation of 7 NYCRR 251-5.1 (a) as being directory, abrogates an inmate's already restricted Constitutional due process rights, as articulated in Wolff v. McDonnell, 418 US 539, 556 (1974). Petitioner argues that when the Third Department first held that the regulatory time frames for prison disciplinary proceedings were directory (see Matter of Sheppard v LeFevre, 116 AD2d 867, 868 [3d Dept 1986]), it incorrectly applied to prison disciplinary proceedings prior precedent regarding the mandatory nature of certain administrative agency regulations and, by doing so, improperly shifted the benefit for whom the time-frame set forth in 7 NYCRR 251-5.1 (a) was intended. Petitioner requests that the Court reject the Third Department's interpretation and, rather, adopt the Forth Department's interpretation of the time period set forth in 7 NYCRR 251-5.1 (a) as being mandatory (see Matter of Anderson v Coughlin, 195 AD2d 1075, 1076 [4th Dept 1993]). However, while this Court might find Petitioner's argument persuasive, given stare decisis, this Court is not free to depart from settled precedent in this Department (see People v Turner, 5 NY3d 476, 482 [2005]).

As the time requirements set forth in 7 NYCRR 251-5.1 (a) are considered directory in this Department, it was not improper for the Commissioner to order a rehearing after administratively reversing the determination made as a result of the first superintendent's hearing. The regulations provide that, upon an inmate's administrative appeal of a disciplinary [*5]determination, the commissioner or his designee may, among other things, reverse the hearing disposition and order a new hearing (see 7 NYCRR 254.8 [d]). Where, as here, the Commissioner had not yet issued a final determination, "it is entirely proper for the Commissioner to order a rehearing upon his administrative review of an inmate disciplinary proceeding, even where an error sought to be corrected is of constitutional magnitude" (Matter of Hughes v Bedard, 117 AD3d 1246, 1247 [3d Dept 2014]). Finally, given the serious nature of the charges, the Court finds that the modified penalty of 18 months in the SHU was neither harsh nor excessive (see Matter of Cobb v Selsky, 270 AD2d 747, 748 [3d Dept 2000]).

Accordingly, it is

ORDERED AND ADJUDGED that the Petition is dismissed, without costs.This constitutes the Decision and Order/Judgment of the Court. The original Decision and Order/Judgment and the materials submitted by Respondent for in camera inspection are being returned to counsel for Respondent. A copy of the Decision and Order/Judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this Decision and Order/Judgment, and delivery of a copy of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.