Matter of Howard v Prack

Matter of Howard v Prack 2016 NY Slip Op 01538 Decided on March 3, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 3, 2016
521259

[*1]In the Matter of STANLEY HOWARD, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

Calendar Date: January 19, 2016
Before: McCarthy, J.P., Garry, Egan Jr. and Devine, JJ.

Stanley Howard, Pine City, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with drug use after his urine twice tested positive for THC. At the outset of the subsequent tier III disciplinary hearing, petitioner pleaded guilty to the charge with an explanation, contending that the drugs were used in order to help him cope with certain mental health issues. Following the hearing, petitioner was found guilty as charged and this determination was affirmed on

administrative appeal. This CPLR article 78 proceeding followed.

Initially, petitioner's challenge to the sufficiency of the evidence supporting the determination of guilt is precluded by his guilty plea (see Matter of Campbell v Bedard, 123 AD3d 1278, 1278 [2014]; Matter of Ramos v Annucci, 121 AD3d 1486, 1486 [2014]). Further, contrary to petitioner's contention that his administrative appeal was not determined within 60 days as required by 7 NYCRR 254.8, the record reflects that the appeal was received by the Department of Corrections and Community Supervision on April 22, 2014 and decided on June 13, 2014. Even if we credit petitioner's claim that he mailed his appeal on December 20, 2013, [*2]the 60-day time period is directory, rather than mandatory, and petitioner has not demonstrated that any alleged delay resulted in substantial prejudice to his case (see Matter of Austin v Fischer, 70 AD3d 1074, 1074-1075 [2010]; Matter of Goberdhan v Goord, 7 AD3d 897, 897-898 [2004]).

Respondents concede, however, and we agree, that petitioner's mental health status was at issue and the Hearing Officer erred in not taking testimony from Office of Mental Health (hereinafter OMH) personnel regarding petitioner's mental condition (see 7 NYCRR 254.6 [c]). Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner's presence, an OMH clinician "as may be available" concerning petitioner's mental condition (7 NYCRR 254.6 [c] [3]; see Matter of Lashway v Fisher, 110 AD3d 1420, 1420 [2013]). Here, the Hearing Officer made no effort to ascertain the testimony of the therapist, or any other clinician at OMH, outside the presence of petitioner. Under the circumstances presented herein, the proper remedy for the Hearing Officer's failure to satisfy his obligations under 7 NYCRR 254.6 (b) is a new hearing to address petitioner's mental health status (see Matter of Rosado v Kuhlmann, 164 AD2d 199, 200-201 [1990], lv denied 77 NY2d 806 [1991]).

McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.