O'Donnell v. Senkowski

251 A.D.2d 717, 674 N.Y.S.2d 155, 1998 N.Y. App. Div. LEXIS 6484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1998
• Status: Published

Opinion

White, J.

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

Following a tier III hearing, petitioner, an inmate at Clinton Correctional Facility in Clinton County, was found guilty of interfering with an employee, refusing a search or frisk and obstructing cell visibility (petitioner pleaded guilty to this charge), and was found not guilty of refusing a direct order. Upon administrative appeal, the determinations of guilt were affirmed. Petitioner commenced this CPLR article 78 proceeding, subsequently transferred to this Court, challenging the determination on several grounds.

Upon reviewing the record we find that the misbehavior report, combined with the testimony of the correction officer who authored it and petitioner’s testimony which essentially reflected the correction officer’s version, provided substantial evidence supporting the determination (see, Matter of Smith v Senkowski, 245 AD2d 909; Matter of Hayes v Coomhe, 236 AD2d 664).

We have not considered a number of procedural arguments petitioner has advanced in this proceeding as they were not raised at the administrative hearing (see, Matter of Clavijo v Coombe, 236 AD2d 692). While there are exceptions to the preservation rule, they are not present here nor are petitioner’s arguments of sufficient magnitude for us to annul the determination in the interest of justice (see, Matter of Woodin v Lane, 119 AD2d 969).

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