Opinion
2012-08-2
In the Matter of James ARGENTINA, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Argentina, Alden, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
James Argentina, Alden, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
Appeal from a judgment of the Supreme Court (McGrath, J.), entered November 15, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Prison staff searching petitioner's property during a cell transfer found certain contraband and prohibited materials. Petitioner was charged with violating four prison disciplinary rules and was found guilty of possessing gang-related materials, excessive stamps and contraband. The determination was affirmed on administrative appeal and petitioner commenced this proceeding seeking review of the determination. Supreme Court dismissed the petition. Petitioner appeals.
Because the petition raises—albeit inartfully—a question of substantial evidence, Supreme Court should have transferred the matter to this Court after it disposed of other objections that “could terminate the proceeding” (CPLR 7804[g]; see Matter of Jones v. Fischer, 84 A.D.3d 1604, 1605 n., 922 N.Y.S.2d 879 [2011];Matter of Darvie v. Fischer, 72 A.D.3d 1306 n., 897 N.Y.S.2d 925 [2010] ). Addressing the merits of that argument, the misbehavior report and the testimony of the correction officer who conducted the search provide substantial evidence supporting respondent's determination ( see Matter of Alache v. Fischer, 91 A.D.3d 1240, 1241, 937 N.Y.S.2d 458 [2012] ).
Petitioner's contentions that the hearing was not convened or concluded in a timely manner, he received insufficient assistance, there were errors in the misbehavior report, the correction officer who testified was not shown to be qualified to give an opinion regarding gang signs and symbols, and petitioner did not receive an updated copy of one of the disciplinary rules he was charged with violating were not raised at the hearing and/or upon administrative appeal and are therefore unpreserved for our review ( see Matter of Morales v. Fischer, 89 A.D.3d 1346, 1346–1347, 934 N.Y.S.2d 526 [2011];Matter of Pujals v. Fischer, 87 A.D.3d 767, 767, 928 N.Y.S.2d 867 [2011];Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 [2011];Matter of Hernandez v. Bezio, 76 A.D.3d 1148, 1148–1149, 907 N.Y.S.2d 719 [2010];Matter of Perez v. Goord, 304 A.D.2d 939, 939, 757 N.Y.S.2d 382 [2003];see generally Matter of Hamilton v. Goord, 32 A.D.3d 642, 643, 819 N.Y.S.2d 624 [2006],lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921 [2006];Matter of Cayenne v. Goord, 16 A.D.3d 782, 783, 790 N.Y.S.2d 762 [2005] ).
Additionally, petitioner's assertion that the search of his belongings was in violation of Department of Corrections and Community Supervision Directive No. 4910 is unavailing, inasmuch as that directive was not applicable to the circumstances of the search at issue. Any gaps in the hearing transcript are not so significant as to prevent meaningful review ( see Matter of McKinley v. Goord, 40 A.D.3d 1280, 1280, 836 N.Y.S.2d 349 [2007],lv. denied9 N.Y.3d 807, 843 N.Y.S.2d 536, 875 N.E.2d 29 [2007];Matter of Ford v. Smith, 23 A.D.3d 829, 829, 805 N.Y.S.2d 663 [2005],lv. denied6 N.Y.3d 708, 813 N.Y.S.2d 44, 846 N.E.2d 475 [2006] ). Petitioner's remaining arguments have been reviewed and are either unpreserved or lacking in merit.
Considering that petitioner's request for reconsideration was not submitted to respondent until after his administrative appeal was concluded, petitioner did not properly preserve issues for our review by including them in that reconsideration request ( see generally Matter of O'Malley v. New York City Tr. Auth., 158 A.D.2d 822, 824, 551 N.Y.S.2d 407 [1990],lv. denied76 N.Y.2d 704, 559 N.Y.S.2d 983, 559 N.E.2d 677 [1990] ).
ORDERED that the judgment is affirmed, without costs.