Woods v. Leclaire

50 A.D.3d 1286, 855 N.Y.S.2d 717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 2008
• 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with violating the prison disciplinary rules prohibiting the assault of another inmate and fighting. Following a tier III disciplinary hearing, petitioner was found guilty of the assault charge and not guilty of the fighting charge. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. To the extent that the petition can be construed as raising a substantial evidence question, we note that the misbehavior report, together with the testimony given by the authoring correction officer both at the hearing and confidentially, comprise the requisite substantial evidence to support the determination of guilt (see Matter of Matias v Selsky, 43 AD3d 1261, 1262 [2007]). Regarding petitioner’s assertion that he was denied the right to present testimony from the inmate he was found guilty of assaulting and the facility nurse who examined that inmate, such a claim is unpreserved for our review by virtue of petitioner’s failure to lodge the appropriate objections at the hearing (see Matter of Towles v Selsky, 12 AD3d 737, 738 [2004], lv denied 4 NY3d 706 [2005]).

Cardona, P.J., Carpinello, Rose, Lahtinen and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.