Matter of Geraci v. Annucci

131 A.D.3d 767, 14 N.Y.S.3d 716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 2015
• Docket: 519780
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (McNally, J.), entered July 17, 2014 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

During the course of an investigation, correction officials received confidential information identifying petitioner as the perpetrator of an attack upon an inmate. As a result, he was charged in a misbehavior report with assaulting an inmate. Petitioner was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. He then commenced this CPLR article 78 proceeding challenging the determination and, following joinder of issue, Supreme Court dismissed the petition. Petitioner now appeals.

Petitioner’s primary contention is that he was improperly denied the right to call the inmate who was assaulted as a witness at the hearing. This potential witness, however, never agreed to testify and signed a refusal form that was not challenged by petitioner at the hearing. Given petitioner’s “ Tail-Cure] to object or request that the Hearing Officer make further inquiry,’ ” his claim is not preserved for our review (Matter of Rafi v Venettozzi, 120 AD3d 1481, 1482 [2014], quoting Matter of Taylor v Fischer, 89 AD3d 1298 [2011]). Petitioner’s remaining arguments are also unpreserved. Therefore, Supreme Court properly dismissed the petition.

McCarthy, J.P., Garry, Rose and Clark, JJ., concur.

Ordered that the judgment is affirmed, without costs.