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Sardo v. Murphy

175 A.D.2d 972 Court N.Y. App. Div. Decision date 1991-08-29 English

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p. 972
In the Matter of David Sardo, Petitioner, v J. Murphy, as Hearing Officer of Mt. McGregor Correctional Facility, et al., Respondents.

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner’s confinement in the special housing unit was not due to the filing of the second misbehavior report; he was already in such confinement due to the filing of the first misbehavior report. Accordingly, the requirement that his disciplinary hearing on the second charge be commenced within seven days of his confinement was not applicable (see, 7 NYCRR 251-5.1 [a]; Matter of Maldonado v Coughlin, 150 AD2d 692 ) and compliance with the 14-day time period set

p. 973
forth in 7 NYCRR 251-5.1 (b) was required. Here, the hearing was completed within 10 days of the filing of the second misbehavior report and was therefore timely (see, Matter of Young v Coughlin, 144 AD2d 753 , appeal dismissed 74 NY2d 625 ). Furthermore, the misbehavior report, coupled with the testimony of the correction officer who authored the report as well as the testimony of other witnesses at the hearing, provided substantial evidence to support the determination of guilt (see, Matter of Foster v Coughlin, 156 AD2d 806 , affd 76 NY2d 964 ; Matter of Garcia v Coughlin, 153 AD2d 1000 ). Petitioner’s remaining contentions have been considered and rejected.

Mikoll, J. P., Levine, Mercure, Crew III and Harvey, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.

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