
    In the Matter of Kevin Deane, Petitioner, v Thomas A. Coughlin, III, as Commissioner of Correctional Services, et al., Respondents.
    Supreme Court, Dutchess County,
    March 9, 1981
    APPEARANCES OF COUNSEL
    
      Marilyn D. Berson, Joan S. Posner and David C. Leven for petitioner. Robert Abrams, Attorney-General (John Zenir of counsel), for respondents.
   OPINION OF THE COURT

Theodore Dachenhausen, Jr., J.

This is an article 78 proceeding in which petitioner seeks a judgment: (1) vacating and setting aside a determination of respondent Scully made following a superintendent’s proceeding and the affirmance of such determination by respondent Coughlin; (2) directing respondents to expunge all entries of the superintendent’s proceeding and the resulting disposition thereof from his records; and (3) restoring him to the status he enjoyed prior to commencement of the superintendent’s proceeding.

Petitioner was charged with the attempted murder of Correction Officer Post and the assault of Correction Officer Tierney arising out of an incident which occurred at Green Haven on October 14,1980. As a result of the aforestated charges, petitioner was confined to the special housing unit on October 21, 1980. The following day he appeared before the adjustment committee and was thereupon referred to a superintendent’s proceeding. On November 4, 1980, the superintendent’s proceeding commenced, at which time petitioner entered a plea of not guilty. After a brief recess, during which time Officer Tierney was interviewed, the proceeding continued. Subsequently, petitioner was found guilty and was sentenced to 365 days confinement in the special housing unit and 365 days loss of telephone and commissary privileges.

In Powell v Ward (542 F2d 101), the United States Court of Appeals for the Second Circuit held that, absent special circumstances, inmates who are confined to segregated prison units pending determination of charges lodged against them must be afforded a superintendent’s proceeding within seven days of their confinement. Here, petitioner was held in the special housing unit for 14 days. The Attorney-General has not offered any explanation or justification for the delay. Accordingly, the petition is granted. The determination of respondent Scully made following the superintendent’s proceeding and the affirmance of such determination by respondent Coughlin are vacated and set aside, all entries of said determinations and proceedings shall be expunged from petitioner’s records and petitioner shall be restored to the status he enjoyed prior to commencement of the proceeding.  