Decided and Entered: July 7, 2005 96742 ________________________________ In the Matter of JIMMY LEE BARNES JR., Petitioner, v MEMORANDUM AND JUDGMENT GLENN S. GOORD, as Commissioner of Correctional Services, et al., Respondents. ___________________________ Calendar Date: May 18, 2005 Before: Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ. __________ Jimmy Lee Barnes Jr., Comstock, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondents. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules prohibiting fighting, violent conduct, creating a disturbance and refusing a direct order. Initially, petitioner’s claim that his hearing was not timely commenced is unpersuasive as he erroneously counted the day on which the misbehavior report was written as one of the seven days within which the hearing was required to be held (see Matter of Vasquez v Goord, 14 AD3d 903, 904 [2005]; Matter of Bossett v Portuondo, 3 AD3d 639, 641 [2004]). Moreover, the record reveals that a one-day extension of time was validly authorized to allow petitioner’s assistant more time and petitioner did not establish prejudice as a result of the delay (see 7 NYCRR 251-5.1 [a]; Matter of Berry v Portuondo, 6 AD3d 848, 849 [2004]). Finally, the misbehavior report, the testimony of its author and the fight investigation report provide substantial evidence to support the determination of guilt (see Matter of Hernandez v Selsky, 9 AD3d 662, 663 [2004], appeal dismissed, lv denied 3 NY3d 698 [2004]). Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court State of New York Supreme Court, Appellate Division Third Judicial Department -2- 96742
