Pigmentel v. Selsky

19 A.D.3d 816, 797 N.Y.S.2d 160, 2005 N.Y. App. Div. LEXIS 6781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2005
• 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 a prison disciplinary rule.

After a correction officer found a letter containing gang-related references in petitioner’s cell, he was charged in a misbehavior report with possessing unauthorized organizational material. He was found guilty following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

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Initially, petitioner maintained at the hearing that the confiscated letter was a legal document and sought to have three judges purportedly involved in a pending legal proceeding testify. The Hearing Officer denied this request, but stipulated to the existence of a pending legal proceeding. Insofar as there is nothing in the record to indicate that the judges had direct knowledge of the incident in question or the contents of the letter, the Hearing Officer properly denied petitioner’s request (see Matter of Barclay v New York State Dept. of Correctional Servs., 13 AD3d 743, 744 [2004], lv denied 4 NY3d 705 [2005]; Matter of Nijman v Goord, 294 AD2d 737, 738 [2002]). Petitioner’s claim that he was improperly denied documentation at the hearing is vague and, in any event, is not properly before us as it was not raised in the petition (see Matter of Reid v Goord, 14 AD3d 950, 951 [2005]; Matter of Wright v Goord, 262 AD2d 876, 877 [1999]). Petitioner’s assertion that his right to privacy was violated as a result of the confiscation of the letter is not preserved as it was not raised at the hearing (see Matter of Lopez v Goord, 14 AD3d 771 [2005]).

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

Although the proceeding was properly transferred to this Court inasmuch as petitioner raised a question of substantial evidence in his petition, he has not raised that issue in his brief and, therefore, it is deemed abandoned (see Matter of Vallade v Goord, 11 AD3d 786, 787 n [2004]).