Brown v. Venettozzi

79 A.D.3d 1510, 912 N.Y.S.2d 467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 2010
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

A search of petitioner’s prison cell revealed a shank about 7¾ inches long and shaped like an ice pick with a taped handle hidden in his locker. He was served with a misbehavior report charging him with possession of a weapon and was found guilty of that charge following a tier III disciplinary hearing. That determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.

*

We confirm. Petitioner’s contention that his due process rights were violated by the Hearing Officer’s denial of certain witnesses is unpreserved for our review by his failure to object during the hearing (see Matter of Reese v Bezio, 75 AD3d 1029 [2010]; Matter of Brown v Selsky, 49 AD3d 1108 [2008]). Further, we do not find that the penalty assessed to petitioner upon the finding of guilt was enhanced by his attempt to establish a retaliation defense. To the contrary, the Hearing Officer stated in the disposition that she found petitioner’s attempt to introduce previous incidents to be “irrelevant.”

Cardona, EJ., Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Initially, we note that inasmuch as petitioner appears to only assert procedural issues in his petition, the proceeding was improperly transferred to this Court (see Matter of Davis v State of New York, 75 AD3d 1022, 1022 n [2010]). However, we will retain jurisdiction in the interest of judicial economy.