Encarnacion v. Goord

Apr 7, 2005
Versions:17 A.D.3d 749
792 N.Y.S.2d 261
2005 N.Y. App. Div. LEXIS 3591

Appeal from a judgment of the Supreme Court (O‘Brien, III, J.), entered May 19, 2004 in Chemung County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of violating the prison disciplinary rules that prohibit possession of unauthorized property, smuggling and violating facility correspondence procedures. The charges stemmed from the discovery of a $20 bill in a letter sent by petitioner which was returned to the correctional facility due to an insufficient address.

Although the Hearing Officer acknowledged petitioner‘s inability to read English, we find no error in the Hearing Officer‘s conclusion that, based upon past experience with petitioner—including a prior disciplinary hearing—petitioner was sufficiently proficient in the English language to participate in the hearing without the assistance of a Spanish-speaking interpreter (see 7 NYCRR 254.2; Matter of Wan Zhang v Murphy, 1 AD3d 784 [2003]; Matter of Encarnacion v Goord, 286 AD2d 828 [2001], appeal dismissed and lv denied 97 NY2d 653 [2001], lv denied 97 NY2d 606 [2001]). Furthermore, given petitioner‘s uncooperative and disruptive behavior of refusing to participate in the hearing from the outset and continuous interruptions despite the Hearing Officer‘s warnings that such conduct would lead to his removal, we are unpersuaded by petitioner‘s contention that he was improperly removed from the hearing (see 7 NYCRR 254.6 [a] [2]; see also Matter of Bernier v Goord, 3 AD3d 746, 747-748 [2004]; Matter of Sowell v Goord, 295 AD2d 835, 836 [2002]; cf. Matter of Boodro v Coughlin, 142 AD2d 820, 821-822 [1988]). We have considered petitioner‘s remaining contentions and find them to be without merit.

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.