Matter of McKinley v Goord

Matter of McKinley v Goord 2007 NY Slip Op 07944 [44 AD3d 1164] October 25, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of Sincere McKinley, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1] Sincere McKinley, Malone, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with making threats after he commented that he wanted to punch a correction officer who was handing out mail. He was found guilty of the charge following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, prepared by the correction sergeant who heard the comment, provides substantial evidence supporting the determination of guilt (see Matter of Brown v Goord, 24 AD3d 840, 840 [2005]; cf. Matter of Allen v Goord, 14 AD3d 961, 962 [2005]). Petitioner's assertion that he did not intend to threaten the officer presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v Goord, 25 AD3d 852, 852 [2006]). His claim that the hearing was not completed in a timely manner is also unavailing. [*2]Excluding the date that the misbehavior report was prepared (see Matter of Freeman v Selsky, 270 AD2d 547, 548 [2000]); Matter of Harris v Goord, 268 AD2d 933, 934 [2000]), an extension to complete the hearing was obtained within 14 days (see 7 NYCRR 251-5.1 [b]) and the hearing was completed within the time provided for in the extension. Under the circumstances presented, petitioner waived his right to claim that he was denied adequate employee assistance inasmuch as he declined the assistant's initial attempt to meet with him and did not avail himself of the Hearing Officer's offer to reassign the assistant or object at the hearing (see Matter of Starks v Goord, 2 AD3d 1117, 1117 [2003]; Matter of Kross v Goord, 278 AD2d 637, 637 [2000]; cf. Matter of Avincola v Goord, 283 AD2d 748 [2001]). Petitioner's remaining contentions are either unpreserved for our review or lacking in merit.

Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.