Mercado v. Selsky

298 A.D.2d 720, 748 N.Y.S.2d 531, 2002 N.Y. App. Div. LEXIS 10086

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2002
• Status: Published

Opinion

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

Petitioner was found guilty of violating the prison disciplinary rule that prohibits the possession of a weapon after a search of his cell uncovered a toothbrush sharpened to a point at one end. Petitioner asserts that the Department of Correctional Services should have an “orientation program” whereby new inmates are advised as to their rights at disciplinary proceedings and how to defend against any disciplinary charges.

* Inasmuch as petitioner raises this issue for the first time in his brief, it is not preserved for our review (see Matter of Tebout v Goord, 290 AD2d 833). In any event, the record establishes that the Hearing Officer explained petitioner’s rights and obligations at the commencement of the hearing and petitioner acknowledged that he understood them. Moreover, such issue is more appropriately raised through a grievance process.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

While petitioner raised a substantial evidence issue in his petition which warranted transfer of this proceeding to this Court, by failing to mention it in his brief, he has abandoned such issue (see Matter of McGowan v Goord, 282 AD2d 848).