Tevault v. Prack — 131 A.D.3d 776

Majority

p. 776

In the Matter of Richard Tevault, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

[14 NYS3d 823]

Appeal from a judgment of the Supreme Court (Mott, J.), entered November 25, 2014 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision 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 buprenorphine. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. Petitioner commenced this CPLR article 78 proceeding challenging the determination and, following joinder of issue, Supreme Court dismissed the petition. Petitioner now appeals.

Petitioner’s sole contention is that the lieutenant who presided over the hearing was not authorized pursuant to 7 NYCRR 254.1 to act as the Hearing Officer. We disagree. The regulation at issue provides, in relevant part, that the person appointed to conduct the disciplinary hearing “shall be either the superintendent, a deputy superintendent, captain or commissioner’s hearing officer employed by the department’s central office, but the superintendent may, in his or her discretion, designate some other employee to conduct the proceeding” (7 NYCRR 254.1). In view of this, the lieutenant could properly

p. 777

be designated by the superintendent to conduct the hearing (see Matter of Goss v Kelly, 145 AD2d 936 [1988]; Matter of Purnell v Kelly, 115 AD2d 1010 [1985]). Here, the lieutenant informed petitioner at the hearing that the superintendent had assigned him to be the Hearing Officer to preside over the hearing. Notwithstanding petitioner’s suggestion to the contrary, no specific documentation was necessary to effectuate this designation. Therefore, Supreme Court properly dismissed the petition.

Peters, P.J., Lahtinen, Lynch and Devine, JJ., concur.

Ordered that the judgment is affirmed, without costs.