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Magin v. Leclaire

Appellate Division of the Supreme Court of New York, Third Department
Mar 27, 2008
49 A.D.3d 1108 (N.Y. App. Div. 2008)

Opinion

No. 502833.

March 27, 2008.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered May 15, 2007 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.

Eric A. Magin, Altona, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Peters, J.P., Spain, Carpinello, Kane and Kavanagh, JJ.


Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent which found him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the petition and petitioner now appeals.

Petitioner's sole contention on appeal is that the misbehavior report was reviewed by a correction sergeant who was not properly authorized to act as a review officer and, as a result, the misbehavior report is invalid. This claim is not properly preserved for our review as petitioner did not make an objection to the sergeant's authorization at the hearing ( see Matter of Carter v Goord, 45 AD3d 1077, 1078; Matter of Hernandez v Goord, 37 AD3d 893, 894; see also Matter of Roman v Goord, 11 AD3d 858, 859). In any event, although the facility superintendent is directed to designate as a review officer a staff member of the rank of lieutenant or higher, we perceive no impropriety in the designation here inasmuch as it is within the superintendent's discretion to designate "some other employee" ( 7 NYCRR 251-2.1; see Matter of Wright v Goord, 19 AD3d 855, lv denied 5 NY3d 711).

Although petitioner raised other issues in his petition, which were addressed and dismissed by Supreme Court, he abandoned these claims by not raising them in his brief ( see Matter of Coleman v Goord, 39 AD3d 1048, 1048 n [2007]).

Ordered that the judgment is affirmed, without costs.


Summaries of

Magin v. Leclaire

Appellate Division of the Supreme Court of New York, Third Department
Mar 27, 2008
49 A.D.3d 1108 (N.Y. App. Div. 2008)
Case details for

Magin v. Leclaire

Case Details

Full title:In the Matter of ERIC A. MAGIN, Appellant, v. LUCIEN J. LECLAIRE, JR., as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 27, 2008

Citations

49 A.D.3d 1108 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 2714
853 N.Y.S.2d 742