Ortiz v. Goord

—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.

After a pat frisk, petitioner was charged with violating the prison disciplinary rule which prohibits the possession of controlled substances. At the conclusion of a tier III hearing, petitioner was found guilty of the charge, a finding which was affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding to review the determination.

Although the petition raised a substantial evidence issue, petitioner’s brief is limited to alleged procedural deficiencies in the hearing. Any error in the alleged failure to provide petitioner with assistance prior to the commencement of the hearing was rectified when the hearing was adjourned and petitioner was provided with assistance (see, Matter of Llull v Coombe, 238 AD2d 761, lv denied 90 NY2d 804). Inasmuch as the hearing was not reconvened until more than 24 hours after petitioner met with his assistant, there was no violation of the 24-hour rule (see, Matter of Hein v Goord, 249 AD2d 661). In any event, petitioner has failed to identify any prejudice from the allegedly deficient procedures (see, Matter of Gill v Selsky, 240 AD2d 831). Finally, there was no error in the denial of petitioner’s request for two witnesses since their testimony regarding the initial failure to provide petitioner with assistance was irrelevant to the controlled substance charge (see, Matter of Beckles v Selsky, 273 AD2d 584, lv denied 95 NY2d 764). Contrary to petitioner’s claim, the witnesses’ testimony was not necessary to preserve the alleged procedural error which, as noted above, was cured by the adjournment of the hearing and provision of assistance to petitioner.

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