Opinion
September 29, 1995
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Balio, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was charged with violating various inmate rules arising out of an obscene phone call. The parole officer who had received the obscene phone call listened to a tape recording of petitioner's voice and positively identified petitioner's "distinctive voice". That testimony, along with the misbehavior report that placed petitioner in the room from which the obscene phone call was made, constitutes substantial evidence supporting the determination of guilt. Petitioner's reliance upon Matter of Grimmett v Riley ( 192 A.D.2d 831) is misplaced. In that case, there was no evidence "that one of the voices from the recorded telephone conversations was actually identified as [the] petitioner's voice" (Matter of Grimmett v Riley, supra, at 831).
Petitioner did not raise the excessiveness of the penalty in his CPLR article 78 petition and, therefore, that issue is not properly before us. In any event, the penalty imposed is not so disproportionate as to be shocking to one's sense of fairness.