McKethan v. Selsky

300 A.D.2d 714, 750 N.Y.S.2d 533, 2002 N.Y. App. Div. LEXIS 11586

Opinion

—Appeal from a judgment of the Supreme Court (McNamara, J.), entered October 19, 2001 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits inmates from possessing a weapon after a search of his cell uncovered a knife-type weapon. Petitioner’s sole contention on appeal is that he was denied the right to be present during the search of his cell. This contention, however, is unpreserved for our review inasmuch as petitioner failed to raise such issue during the disciplinary hearing (see Matter of McDowell v Coughlin, 222 AD2d 915, 916). Although petitioner denied being at any programs and refuted the interdepartmental communication that he was in the law library at the time the search was conducted, we agree with Supreme Court that this was insufficient, without more, to raise the issue that he was improperly removed from his cell at the time of the search. Significantly, petitioner never denied that the weapon was his or that it was in his cell.

Mercure, J.P., Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.