McMillan v. Selsky

221 A.D.2d 785, 634 N.Y.S.2d 410, 1995 N.Y. App. Div. LEXIS 11764

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondents which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating a prison disciplinary rule prohibiting inmates from possessing contraband. In support of his challenge to the administrative determination, petitioner argues, inter alia, that the Hearing Officer was biased and that he was improperly denied the right to be pres ent during the search of his cell. Upon review of the record, we find that the Hearing Officer acted in a fair and impartial manner and, under the circumstances present here, it was not incumbent upon the Hearing Officer to secure the testimony of certain witnesses who refused to testify. Moreover, we find that petitioner has waived his remaining arguments inasmuch as he failed to raise them at the administrative hearing.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.