Huggins v. Goord

19 A.D.3d 989, 797 N.Y.S.2d 647, 2005 N.Y. App. Div. LEXIS 7189

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2005
• 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 certain prison disciplinary rules.

As the result of an investigation into an incident in which an inmate was stabbed 17 times, petitioner was charged, in a misbehavior report with assaulting an inmate and engaging in violent conduct. He was found guilty of both charges following a tier III disciplinary hearing. The determination of guilt was upheld on administrative appeal, but the penalty was modified to 36 months’ confinement in the special housing unit and loss of good time. This CPLR article 78 proceeding ensued.

Initially, inasmuch as petitioner concedes that the determination is supported by substantial evidence, we need not address that issue. Petitioner’s procedural claims are not preserved for our review due to his failure to raise them at the disciplinary hearing or in his administrative appeal (see Matter of Black v Goord, 12 AD3d 1005, 1006 [2004]; Matter of Shelton v Goord, 10 AD3d 794, 795 [2004]). Moreover, we find no reason to further reduce the modified penalty to equal the one imposed on the other inmate involved in the attack given that it was petitioner who inflicted the stab wounds. Accordingly, we decline to disturb respondent’s determination.

Cardona, EJ., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.