                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 13, 2015                   520193
________________________________

In the Matter of RICHARD
   TEVAULT,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   June 8, 2015

Before:   Peters, P.J., Lahtinen, Lynch and Devine, JJ.

                             __________


     Richard Tevault, Dannemora, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      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
                               -2-                  520193

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 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.




                              ENTER:




                              Robert D. Mayberger
                              Clerk of the Court
