Opinion
April 26, 1990
Appeal from the Supreme Court, Sullivan County (Williams, J.).
Petitioner, an inmate of the Department of Correctional Services, was charged in two separate misbehavior reports with making an obscene gesture, using abusive language and making threats. At the Tier II disciplinary hearing which followed, petitioner pleaded not guilty to all charges. Two correction officers testified that they heard petitioner make the statements recited in the misbehavior report and the prison nurse described the allegedly obscene gesture petitioner directed at her. Petitioner was found not guilty of the obscene gesture charge but guilty of the abusive and threatening language charges. Thirty days in keeplock with a corresponding loss of various privileges was the penalty imposed. The disposition was administratively affirmed. Thereafter, petitioner initiated the instant CPLR article 78 proceeding challenging the determination as untimely and biased. Supreme Court dismissed the petition; we affirm.
The disciplinary hearing was to be completed within 14 days of the writing of the misbehavior reports unless otherwise authorized by the Commissioner of Correctional Services or his designee ( 7 NYCRR 251-5.1 [b]). In calculating the 14-day period, the day the report is written is excluded (see, General Construction Law § 20; see also, People v. Stiles, 70 N.Y.2d 765, 767). As the misbehavior reports were written on February 10, 1989 and petitioner's hearing concluded on February 24, 1989, the hearing was timely completed. Furthermore, a one-day extension was sought and duly authorized on February 23, 1989, the day before the hearing was concluded (see, Matter of Agosto v Coughlin, 153 A.D.2d 1008, 1009; cf., Matter of Wysinger v Scully, 150 A.D.2d 468, 469).
Regarding petitioner's assertion that bias tainted the proceedings, Supreme Court should have transferred that issue to this court (see, CPLR 7804 [g]; Segrue v. City of Schenectady, 132 A.D.2d 270, 273). We may, however, treat the question as if it had been properly transferred initially (see, Segrue v. City of Schenectady, supra, at 274; Matter of Quinn v. Werner, 96 A.D.2d 1079, 1081, appeal dismissed 61 N.Y.2d 868). Thus, while a reading of the hearing transcript discloses several acerbic exchanges between petitioner and the Hearing Officer, they fall far short of supporting petitioner's bias claim (see, Matter of Agosto v. Coughlin, supra, at 1009; Matter of Grant v Senkowski, 146 A.D.2d 948, 950).
Judgment affirmed, without costs. Kane, J.P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.