Hamilton v. Goord

32 A.D.3d 642, 819 N.Y.S.2d 624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2006
• 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged with violating a prison disciplinary rule prohibiting inmates from using controlled substances unless prescribed by health services providers, after a sample of his urine twice tested positive for cannabinoids. Following a tier III disciplinary hearing held in his absence, petitioner was found guilty of the charge. On administrative appeal, respondent modified the penalty and otherwise upheld the determination. Petitioner thereafter commenced, this proceeding challenging the determination.

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We find that petitioner knowingly waived his right to be present at the hearing when he refused to attend despite being afforded the opportunity, and having been fully informed by the Hearing Officer both that any concerns would be addressed at the hearing and regarding the consequences of his refusal (see People v Ahmed, 66 NY2d 307, 311 [1985], citing Johnson v Zerbst, 304 US 458, 464-465 [1938]; Matter of Johnson v Racette, 282 AD2d 899, 899-900 [2001]; Matter of Joyce v Goord, 246 AD2d 926, 927 [1998]). Petitioner also failed to preserve the claims that he now advances which should have been raised at the hearing (see CPL 470.05 [2]). “Unpreserved issues are not issues of law” subject to our judicial review in a CPLR article 78 proceeding (Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; see Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000]), as “the Appellate Division ha [s] no discretionary authority or interest of justice jurisdiction” (Matter of Khan v New York State Dept. Health, supra at 880) to review unpreserved issues in such special proceedings. Accordingly, we will not review petitioner’s claims.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although it does not appear that petitioner raised a question of substantial evidence and, therefore, the proceeding should not have been transferred to this Court, we nevertheless retain jurisdiction in the interest of judicial economy (see Matter of Otero v Goord, 17 AD3d 805, 806 n [2005]).