        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1077
CA 15-01199
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF LEONIDES SIERRA,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANTHONY ANNUCCI, ACTING COMMISSIONER,
NEW YORK STATE DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION,
RESPONDENT-RESPONDENT.


LEONIDES SIERRA, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County
(Michael M. Mohun, A.J.), entered May 4, 2015 in a proceeding pursuant
to CPLR article 78. The judgment dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, made after a tier III hearing,
that he violated inmate rule 1.00 (7 NYCRR 270.2 [A]). Petitioner was
charged with the rule violation in a misbehavior report alleging that,
while confined in a state correctional facility, he was convicted of
violating the federal Racketeer Influenced and Corrupt Organizations
Act ([RICO] 18 USC § 1961 et seq.), specifically, that he conducted an
enterprise engaged in a pattern of racketeering activity that affected
interstate commerce (see 18 USC § 1962 [c], [d]; Salinas v United
States, 522 US 52, 62). He appeals from a judgment dismissing the
petition. We affirm.

     Prior to arriving at the correctional facility at issue,
petitioner was convicted of the RICO offense, then remanded to the New
York State Department of Corrections and Community Supervision to
complete his state prison sentence. After arriving at the
correctional facility and being placed in administrative quarantine
for one day, petitioner was charged with violating inmate rule 1.00
based upon his conviction of the above federal crime. Petitioner
initially contends that the hearing was not held within the time
limits set forth in 7 NYCRR 251-5.1 (a). Specifically, he contends
that he was previously confined for several weeks before the
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                                                         CA 15-01199

misbehavior report was written, and that such confinement was based on
the same acts that resulted in the misbehavior report because he was
administratively segregated during the federal prosecution. “The
requirement that a hearing be commenced within seven days of ‘the
inmate’s initial confinement’ when he or she is ‘confined pending a
disciplinary hearing’ (see 7 NYCRR 251-5.1 [a]) was not breached, for
petitioner was placed in administrative segregation before the events
upon which the misbehavior report was premised—namely, the entry of
his guilty plea and the resulting conviction—occurred” (Matter of
Soto-Rodriguez v Goord, 252 AD2d 782, 783; see Matter of Davis v
Goord, 21 AD3d 606, 609).

     Petitioner further contends that the hearing was untimely because
a handwritten notation of uncertain provenance on his request for
employee assistance establishes that he was confined for an additional
day before the report was written. Even assuming, arguendo, that he
is correct about the authorship of that notation and its meaning, it
is well settled that, “[a]bsent a showing that substantial prejudice
resulted from the delay, the regulatory time limits are construed to
be directory rather than mandatory” (Matter of Van Gorder v New York
State Dept. of Corr. Serv., 42 AD3d 834, 835; see Matter of Al-Matin v
Prack, 131 AD3d 1293, 1293; Matter of Rosario v Selsky, 37 AD3d 921,
921-922), and petitioner has identified no prejudice from that single
additional day of confinement.

     Petitioner also contends that he was unable to establish that he
was confined without a timely hearing during the period prior to the
filing of the misbehavior report, i.e., while he was administratively
confined during the federal prosecution, because he was denied the
right to present evidence and call witnesses that would establish such
improper prior confinement, and because he received inadequate
employee assistance when his employee assistant did not obtain
documents or interview the witnesses that would establish such
improper prior confinement. We reject those contentions “inasmuch as
the evidence petitioner sought to present . . . [and the witnesses he
sought to call were] not relevant to the instant charges against
petitioner” (Matter of Jay v Fischer, 118 AD3d 1364, 1364, appeal
dismissed 24 NY3d 975; see Matter of Pujals v Fischer, 87 AD3d 767,
767; Matter of Mullen v Superintendent of Southport Corr. Facility, 29
AD3d 1244, 1244-1245). “Likewise, petitioner’s claim that he was
denied effective employee assistance—premised as it is on the
assistant’s failure to obtain the same irrelevant documentation—is
without merit” (Matter of Mullen, 29 AD3d at 1245; see Matter of
Williams v Selsky, 257 AD2d 932, 933).

     Finally, petitioner contends that the misbehavior report is
insufficient because it alleges a violation of inmate rule 1.00 (7
NYCRR 270.2 [A]), which states that “[a]ny Penal Law offense may be
referred to law enforcement agencies for prosecution through the
courts. In addition, departmental sanctions may be imposed based upon
a criminal conviction.” Petitioner contends that, because the first
sentence of the regulation applies only to violations of the Penal
Law, only criminal convictions under the Penal Law will support the
imposition of sanctions under the second sentence. Therefore, he
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                                                         CA 15-01199

contends, no sanctions may be imposed upon him because he was
convicted in United States District Court of a RICO crime. We reject
petitioner’s contention.

     Respondent, through the hearing officer, interpreted the
regulation at issue to permit the imposition of sanctions based upon a
conviction of any crime, and it is a “recognized principle of
administrative law that great weight is to be given to an
administrative agency’s interpretation of its own regulations” (People
ex rel. Knowles v Smith, 54 NY2d 259, 267; see Matter of Brooks v
Alexander, 64 AD3d 1096, 1098). Thus, where “the construction adopted
by [the agency] is not irrational, it should be sustained” (Matter of
Hop Wah v Coughlin, 160 AD2d 1054, 1056; see Ostrer v Schenck, 41 NY2d
782, 786). Here, we agree with respondent that the agency’s
interpretation of the regulation “as authorizing the inmate’s
[confinement] in these circumstances [is] not irrational” (Matter of
Blake v Mann, 75 NY2d 742, 743).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
