Newsome v. Selsky

26 A.D.3d 565, 807 N.Y.S.2d 725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2006
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was interviewed by a correction sergeant about a harassment complaint that had been made against him by a civilian librarian. During the interview, he became irritated, bolted from his chair, clenched his fists at the sergeant, used profane language and called him a liar. Petitioner was then pat frisked by a correction officer and placed in mechanical restraints. He was charged in a misbehavior report with making threats and verbally harassing an employee. Following a tier III hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner’s claim, the misbehavior report, together with the testimony of the correction officer who placed petitioner in restraints following the outburst, provide substantial evidence supporting the determination of guilt (see Matter of Barber v Selsky, 17 AD3d 950, 951 [2005]; Matter of Jamison v Goord, 8 AD3d 860, 860 [2004]). Petitioner’s contention that the hearing officer was biased is not preserved for our review inasmuch as he did not raise it in his administrative appeal (see Matter of Cameron v Goord, 10 AD3d 795, 796 [2004]). His claim that he was improperly denied the right to call a witness is similarly unpreserved due to his failure to object at the hearing (see Matter of Toledo v Selsky, 12 AD3d 824, 825 [2004]).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.