Opinion
526523
11-08-2018
In the Matter of Eddie HUTCHINSON, Appellant, v. Christopher MILLER, as Superintendent of Great Meadow Correctional Facility, Respondent.
Eddie Hutchinson, Comstock, appellant pro se. Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Eddie Hutchinson, Comstock, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (McKeighan, J.), entered January 23, 2018 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order and violating movement regulations after he refused direct orders to lock out of his cell to attend a mandatory intermediate care program. Following a tier II disciplinary hearing, petitioner was found guilty as charged. The determination was upheld on administrative appeal, and petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, and petitioner appeals.
"Although the petition raises a question of substantial evidence and the matter should have been transferred to this Court in the first instance, we will consider the issues de novo and render judgment accordingly" (Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384 n., 80 N.Y.S.3d 746 [2018] [internal quotation marks and citation omitted] ).
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The misbehavior report and testimony of petitioner admitting that he had refused to leave his cell because he no longer needed the program and that he had applied to be removed from it provided substantial evidence to support the determinationof guilt (see Matter of Ballard v. Annucci, 162 A.D.3d 1375, 1375, 80 N.Y.S.3d 476 [2018] ; Matter of Washington v. Annucci, 160 A.D.3d 1313, 1313, 75 N.Y.S.3d 352 [2018] ). Neither the fact that petitioner reportedly had an application pending to be removed from the program nor his belief that he no longer needed the program absolved him of the responsibility to obey direct orders "promptly and without argument" ( 7 NYCRR 270.2 [B][7][i] ) and to abide by movement regulations (see Matter of Rivera v. Smith, 63 N.Y.2d 501, 515–516, 483 N.Y.S.2d 187, 472 N.E.2d 1015 [1984] ; Matter of Hudyih v. Smith, 129 A.D.3d 1435, 1435, 12 N.Y.S.3d 375 [2015], lv denied 26 N.Y.3d 909, 2015 WL 6181960 [2015] ). To that end, "the proper means of challenging the legality of [an] order [is] through the prison grievance procedure" ( Matter of Hudyih v. Smith, 129 A.D.3d at 1436, 12 N.Y.S.3d 375 ; see 7 NYCRR § 701.1 et seq. ), which the record does not reveal that he pursued, and the issue is not before us. As petitioner's procedural claims were not raised at the hearing, they are unpreserved and may not be considered (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ; Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1185, 70 N.Y.S.3d 587 [2018] ). Petitioner's remaining claims, to the extent that they are preserved, have been reviewed and found to lack merit.
ORDERED that the judgment is affirmed, without costs.
Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ., concur.