Magin v. Leclaire

49 A.D.3d 1108, 853 N.Y.2d 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2008
• Status: Published

Opinion

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent which found him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the petition and petitioner now appeals.

Petitioner’s sole contention on appeal is that the misbehavior report was reviewed by a correction sergeant who was not properly authorized to act as a review officer and, as a result, the misbehavior report is invalid.

* This claim is not properly preserved for our review as petitioner did not make an objection to the sergeant’s authorization at the hearing (see Matter of Carter v Goord, 45 AD3d 1077, 1078 [2007]; Matter of Hernandez v Goord, 37 AD3d 893, 894 [2007]; see also Matter of Roman v Goord, 11 AD3d 858, 859 [2004]). In any event, although the facility superintendent is directed to designate as a review officer a staff member of the rank of lieutenant or higher, we perceive no impropriety in the designation here inasmuch as it is within the superintendent’s discretion to designate “some other employee” (7 NYCRR 251-2.1; see Matter of Wright v Goord, 19 AD3d 855 [2005], lv denied 5 NY3d 711 [2005]).

Peters, J.P., Spain, Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.

Although petitioner raised other issues in his petition, which were addressed and dismissed by Supreme Court, he abandoned these claims by not raising them in his brief (see Matter of Coleman v Goord, 39 AD3d 1048, 1048 n [2007]).