Huntley v. Goord

261 A.D.2d 401, 687 N.Y.S.2d 290, 1999 N.Y. App. Div. LEXIS 4470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Correctional Services which, after a Tier III disciplinary hearing, found the petitioner guilty of violating prison disciplinary rules, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Lange, J.), dated November 19, 1997, which denied his petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

Contrary to the petitioner’s contention, the inmate misbehavior report issued by the New York State Department of Correctional Services was sufficiently detailed to inform him of the specific charges against him and enable him to prepare a defense to the charges against him (see, Matter of Torres v Coombe, 234 AD2d 710). Similarly, the petitioner failed to demonstrate that he was prejudiced as a result of the failure by one of the correction officers to sign the misbehavior report (see, Matter of Serra v Selsky, 223 AD2d 845; Matter of Smith v Walker, 209 AD2d 799; Matter of Jimenez v Coughlin, 206 AD2d 769; Matter of Smythe v McClellan, 226 AD2d 840).

By failing to raise the issue at a time when the alleged error could have been corrected, the petitioner waived any claim that he was prejudiced because the Hearing Officer did not personally confirm that one of his witnesses refused to testify (see, Matter of Alstranner v Selsky, 238 AD2d 658; Matter of Cowart v Coughlin, 194 AD2d 1036; Matter of Dotson v Coughlin, 191 AD2d 912).

The petitioner’s remaining contention is without merit. S. Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.