Opinion
95653
September 23, 2004.
Before: Mercure, J.P., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur.
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 certain prison disciplinary rules.
Following petitioner's involvement in a fight with another inmate, during which he was found to be in possession of a plastic weapon, he was escorted to the special housing unit (hereinafter SHU). During a strip frisk, petitioner was found to be in possession of two more weapons, two pieces of glass wrapped in sheaths, secured to his penis. While petitioner's cell was being packed and his property moved to SHU, correction officers discovered unauthorized gang-related materials. As a result of these incidents, petitioner was charged in three misbehavior reports with assaulting an inmate, fighting, possessing a weapon, possessing contraband and possessing unauthorized gang-related materials. He was found guilty of all charges following a tier III disciplinary hearing and a penalty of 24 months in SHU, loss of commissary, packages and telephone, as well as 12 months loss of good time, was imposed. The determination was affirmed on administrative appeal.
Initially, petitioner's challenges to the sufficiency of two of the misbehavior reports are unpreserved for our review because petitioner failed to raise them at the disciplinary hearing ( see Matter of Khan v. New York State Dept. of Health, 96 NY2d 879, 880). Similarly, petitioner's assertion of hearing officer bias has not been preserved since it was not raised on administrative appeal ( see id. at 880; see generally Matter of Hodge v. Goord, 280 AD2d 767, 767). Finally, inasmuch as petitioner was informed at the hearing of the penalty to be imposed and was provided a corrected copy of the hearing disposition, we reject his challenge to the sufficiency of the penalty notice ( see generally Matter of Richards v. Kuhlmann, 251 AD2d 939, 940).
Adjudged that the determination is confirmed, without costs, and petition dismissed.