Finney v. Leonardo

Appellate Division of the Supreme Court of New York

Finney v. Leonardo

178 A.D.2d 698, 577 N.Y.S.2d 337, 1991 N.Y. App. Div. LEXIS 15973

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 5, 1991

StatusPublished

This text of 178 A.D.2d 698 (Finney v. Leonardo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finney v. Leonardo, 178 A.D.2d 698, 577 N.Y.S.2d 337, 1991 N.Y. App. Div. LEXIS 15973 (N.Y. Ct. App. 1991).

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Opinion

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

Petitioner contends that the Hearing Officer erred when he allowed one correction officer to testify in the presence of another correction officer who was later asked to testify. Prior to the taking of any testimony on the second day of the hearing, the Hearing Officer specifically announced who was present in the room. Petitioner made no objection at this time as to the presence of anyone, and his failure to do so when the Hearing Officer could have done something about it constitutes a waiver (see, Matter of McClean v LeFevre, 142 AD2d 911, 912). Were we to address this issue, we would find no merit to petitioner’s argument. The second correction officer to testify was the cosigner of the misbehavior report and he testified very briefly on only those things already stated in the report. We have examined petitioner’s remaining contention and find it also lacking in merit.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Mercure, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.

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

Petitioner contends that the Hearing Officer erred when he allowed one correction officer to testify in the presence of another correction officer who was later asked to testify. Prior to the taking of any testimony on the second day of the hearing, the Hearing Officer specifically announced who was present in the room. Petitioner made no objection at this time as to the presence of anyone, and his failure to do so when the Hearing Officer could have done something about it constitutes a waiver (see, Matter of McClean v LeFevre, 142 AD2d 911, 912). Were we to address this issue, we would find no merit to petitioner’s argument. The second correction officer to testify was the cosigner of the misbehavior report and he testified very briefly on only those things already stated in the report. We have examined petitioner’s remaining contention and find it also lacking in merit.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Mercure, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.

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Bluebook (online)

178 A.D.2d 698, 577 N.Y.S.2d 337, 1991 N.Y. App. Div. LEXIS 15973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finney-v-leonardo-nyappdiv-1991.

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