MatterofHenryvFischer

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 2014
• Docket: 518064
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: August 7, 2014 518064 ________________________________

In the Matter of JEVON HENRY, Appellant, v MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent. ________________________________

Calendar Date: June 9, 2014

Before: McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Main Street Legal Services, Inc. (Julia P. Kuan of counsel), Long Island City, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McGrath, J.), entered May 14, 2013 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 certain prison disciplinary rules.

Petitioner, an inmate, commenced this CPLR article 78 proceeding seeking to challenge a tier III prison disciplinary determination finding him guilty of violating various prison disciplinary rules, including assault, violent conduct and gang activity. Supreme Court dismissed the petition and petitioner appeals.

We affirm. Petitioner contends that the Hearing Officer -2- 518064

did not make an adequate inquiry into the refusal of a certain inmate witness to testify. Inasmuch as the record reveals that petitioner did not raise this objection at the hearing, the issue is unpreserved for review (see Matter of Love v Prack, 89 AD3d 1307, 1308 [2011]; Matter of Brown v Selsky, 37 AD3d 891, 891 [2007]). Similarly unpreserved due to his failure to specifically object at the hearing are petitioner's claims that he was improperly denied a witness (see Matter of Tucci v Selsky, 94 AD3d 1294, 1295 [2012]; Matter of Barclay v Knowles, 79 AD3d 1550, 1551 [2010]), and that he was denied the right to present documentary evidence (see Matter of Knight v Bezio, 82 AD3d 1381, 1382 [2011], lv dismissed 17 NY3d 788 [2011]; Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]). Accordingly, the petition was properly dismissed.

McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court