IN THE MATTER OF BAZELAIS v. GOORD

Lahtinen, J.

Following an altercation with another inmate, petitioner was charged in a misbehavior report with refusing to obey a direct order, violent conduct, disturbing the order of the facility and fighting. The initial determination after a tier III hearing, which found petitioner guilty of all charges, was administratively reversed and a new hearing was ordered. The new hearing resulted in a determination which found petitioner guilty of all charges except refusing to obey a direct order.

Based upon the undisputed evidence that the other inmate was the initial aggressor, petitioner contends that he acted in self-defense and, therefore, there is no basis for finding him guilty of any misconduct. There is evidence, however, including petitioner's admission that he bit the other inmate in the face, to support the conclusion that, while petitioner was not the initial aggressor, he thereafter took violent and combative action beyond what was necessary for self-defense and was actively engaged in the fight (see, Matter of Baez v. Goord, 261 A.D.2d 741). In addition, in imposing the penalty, the Hearing Officer appropriately took into account that petitioner was not the initial aggressor (see, Matter of Rivera v. Goord, 274 A.D.2d 813).

Petitioner's jurisdictional argument based upon the claimed untimeliness of the first hearing is unavailing. In the absence of substantial prejudice to petitioner from the delay, the 14-day time period for completing the hearing must be considered directory and not mandatory (see, Matter of Byas v. Goord, 272 A.D.2d 800, lv denied 95 N.Y.2d 765; Matter of Taylor v. Coughlin, 135 A.D.2d 992). In any event, the time period runs from the writing of the misbehavior report (see, Matter of Afrika v. Edwards, 160 A.D.2d 1212) and the hearing in this case was timely completed within the additional period authorized by two valid extensions to provide petitioner with facility documents that needed to be redacted (see, Matter of Feliciano v. Selsky, 239 A.D.2d 799). Petitioner's remaining arguments are either not preserved or lacking in merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.