Matter of Garcia v. Prack

128 A.D.3d 1244, 8 N.Y.S.3d 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2015
• Docket: 519043
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (McDonough, J.), entered May 1, 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 drug use after his urine twice tested positive for cannabis. Following a tier III disciplinary hearing, petitioner was found guilty and the determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

We affirm. We are unpersuaded by petitioner’s contention that he was improperly removed from the hearing where, after being told to stop talking, he continued to engage in disruptive and argumentative behavior with a correction officer in the hearing room (see 7 NYCRR 254.6 [a] [2]; see also Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014], lv denied 24 NY3d 906 [2014]; Matter of Rupnarine v Prack, 118 AD3d 1062, 1063 [2014]). The record belies petitioner’s further contention that the Hearing Officer failed to consider the evidence presented or that the determination flowed from any alleged bias (see Matter of Jackson v Annucci, 122 AD3d 1288, 1288 [2014]; Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]). The additional contentions raised by petitioner for the first time in his reply brief are not properly before this Court (see Matter of Thurmond v Fischer, 112 AD3d 1234, 1235 [2013]).

Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed, without costs.