Tafari v. Selsky

56 A.D.2d 912, 867 N.Y.S.2d 748

Opinion

— Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered July 16, 2007 in Albany 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 petitioner guilty of violating certain prison disciplinary rules.

When instructed by a correction officer to sit in the holding cage, petitioner became disruptive, shouted obscenities and threatened to harm the officer. As a result, he was charged in a misbehavior report with harassment, creating a disturbance and making threats. He was found guilty of the charges following a tier III disciplinary hearing and the determination was upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

Petitioner’s sole contention on appeal is that he was improperly denied the right to have an unidentified nurse testify as a witness at the disciplinary hearing. Inasmuch as he failed to raise this objection at the hearing, he has not preserved it for our review (see Matter of Davila v Selsky, 48 AD3d 846, 847 [2008]; Matter of Newsome v Selsky, 26 AD3d 565, 566 [2006]). Accordingly, Supreme Court properly dismissed the petition.

Mercure, J.P, Peters, Carpinello, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.