McNeil v. Fischer , 971 N.Y.S.2d 373 ( 2013 )

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Superintendent of Great Meadow Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

A correction officer observed petitioner talking during the master count and issued several orders for him to stop before he actually did so. As a result, petitioner was charged in a misbehavior report with employee interference, refusing a direct order, delaying the count and violating count procedures. Petitioner then became verbally abusive when the officer directed him to return to his cell, and was charged in a second misbehavior report with harassment. Following two separate tier II disciplinary hearings, petitioner was found guilty as charged. Upon administrative review, the first determination was modified to dismiss the charges of employee interference and delaying the count, while the second determination was affirmed in its entirety. Petitioner then commenced the present CPLR article 78 proceeding.

We confirm. Substantial evidence, in the form of the misbehavior reports and petitioner’s testimony, supports both determinations (see Matter of Costa v Connolly, 94 AD3d 1322, 1322 [2012]; Matter of Law v Goord, 301 AD2d 703, 704 [2003]). We perceive nothing inherently contradictory in the first determination that petitioner’s behavior, while violative of facility count procedures, did not delay the count or interfere with the officer as he conducted it. Petitioner’s remaining argument, that the officer proffered both misbehavior reports in retaliation for the filing of a grievance, was not raised at either hearing and is therefore not properly before us (see Matter of Bookman v Fischer, 107 AD3d 1260, 1260 [2013]; Matter of Latham v Taylor, 80 AD3d 1044, 1044 [2011]).

Peters, EJ., Rose, McCarthy and Garry, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.