Tafari v. Selsky

36 A.D.3d 982, 825 N.Y.S.2d 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Bradley, J.), entered May 10, 2006 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding him guilty of violating certain prison disciplinary rules.

Petitioner was disruptive and shouted obscenities at a correction officer who instructed him to end his shower. As a result, he was charged in a misbehavior report with harassment, refusing a direct order, making threats and engaging in violent conduct. Petitioner refused to attend a subsequent tier III disciplinary hearing and it was conducted in his absence. At the conclusion of the hearing, petitioner was found guilty of all of the charges and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Following joinder of issue, Supreme Court dismissed the proceeding and this appeal ensued.

We are unpersuaded by petitioner’s claim that he was improperly denied the right to have an inmate witness testify at the hearing. The record discloses that the inmate signed a witness refusal form detailing the reasons he did not want to testify (see Matter of Cody v Goord, 17 AD3d 943, 945 [2005]; Matter of Perez v Goord, 300 AD2d 956, 957 [2002]). Inasmuch as petitioner did not attend the hearing to object to the Hearing Officer’s failure to make a further inquiry regarding the refusal, he has failed to preserve this claim for our review (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of Perez v Goord, supra at 958).

Cardona, PJ., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.