State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 10, 2016 522052 

________________________________

In the Matter of DENNIS MEEHAN,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: September 20, 2016

Before: Peters, P.J., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Dennis Meehan, Fallsburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondent. 

__________

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review a determination finding petitioner guilty of violating a

prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a

controlled substance after a sample of his urine twice tested

positive for the presence of buprenorphine. He was found guilty

of the charge following a tier II disciplinary hearing. At the

conclusion of the hearing, he was advised that he could take an

appeal to the superintendent of the correctional facility within

72 hours. Petitioner filed an administrative appeal, but the

superintendent rejected it and mistakenly informed him that the

appeal "must be sent to Special Housing in Albany." Petitioner
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thereafter commenced this CPLR article 78 proceeding.1 

Initially, petitioner contends that he was deprived of due

process as he was improperly denied administrative review of the

disciplinary determination given the superintendent's rejection

of his appeal. The applicable regulations provide that an appeal

from a determination made after a tier II disciplinary hearing is

to be addressed to the superintendent of the facility (see 7

NYCRR 253.8) and the superintendent erred in giving petitioner a

contrary instruction. Nevertheless, an administrative body's

failure to render a decision on an administrative appeal does not

necessarily preclude a party from obtaining judicial review of

the underlying determination (see e.g. Matter of Furman v

Annucci, 138 AD3d 1269, 1270 [2016], lv dismissed 27 NY3d 1188

[2016]; Matter of King v Stanford, 137 AD3d 1396, 1397 [2016]). 

Petitioner has commenced this CPLR article 78 proceeding to

review the subject determination and respondent has not opposed

it on the ground that petitioner failed to exhaust his

administrative remedies. Rather, respondent has acknowledged the

superintendent's error and is treating the determination as if it

were administratively affirmed. Accordingly, under these

circumstances, petitioner has suffered no prejudice (see Matter

of Dunwoody v Goord, 20 AD3d 833, 834 [2005]), and there has been

no due process violation.

Petitioner also contends that he was improperly denied the

right to call as a witness a representative from the manufacturer

of the testing equipment. We find this claim to be unavailing

inasmuch as the Hearing Officer attempted to obtain this

testimony, but the manufacturer refused to make a witness

available to testify at the disciplinary hearing (see Matter of

Timmons v Annucci, 139 AD3d 1224, 1224 [2016], lv denied 28 NY3d

903 [2016]; Matter of Smith v Prack, 138 AD3d 1286, 1287 [2016]). 

1 Although the petition did not raise the issue of

substantial evidence and the proceeding was improperly

transferred, we nevertheless retain jurisdiction in the interest

of judicial economy (see Matter of Toliver v New York State Dept.

of Corr. & Community Supervision, 127 AD3d 1536, 1537 n 1

[2015]).
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Likewise, petitioner was not improperly denied test documentation

from other correctional facilities that was irrelevant to the

charge against him (see Matter of Henderson v Fischer, 98 AD3d

1162, 1163 [2012]). We have considered petitioner's remaining

arguments, to the extent that they are properly before us, and

find them to be unpersuasive.

Peters, P.J., Egan Jr., Lynch, Devine and Clark, JJ.,

concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court