Russell v. Selsky

305 A.D.2d 844, 758 N.Y.S.2d 560, 2003 N.Y. App. Div. LEXIS 5495

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2003
• Status: Published

Opinion

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

Petitioner was found guilty of violating the prison disciplinary rules that prohibit violent conduct, assault on staff and disobeying a direct order. Petitioner commenced this CPLR article 78 proceeding, contending that he received inadequate employee assistance and was provided with falsified records.

* Inasmuch as petitioner failed to challenge at the hearing or upon administrative appeal the adequacy of the assistance and documents provided, this contention has not been preserved for our review (see Matter of Wells v Selsky, 282 AD2d 799 [2001]). Nevertheless, were we to consider the contention, we would find it to be without merit. Petitioner indicated at the hearing that he was satisfied with the documents he received from the assistant and questioned only the redaction of information therefrom, which the Hearing Officer explained to petitioner’s satisfaction. Furthermore, petitioner’s assertion that the assistant falsified documents is unsupported by the record. In any event, petitioner fails to establish that any alleged inadequacies pertaining to the assistant or his request for documents prejudiced petitioner or his defense (see Matter of West v Costello, 270 AD2d 673 [2000]).

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

Although the proceeding was properly transferred to this Court since petitioner raised an issue of substantial evidence, petitioner has not raised a substantial evidence issue in his brief and we deem the issue abandoned (see Matter of Wade v Portuondo, 289 AD2d 663, 663 n [2001]).