Opinion
2014-07-11
In the Matter of Melvin MOORE, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), For Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), For Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY AND SCONIERS, JJ.
MEMORANDUM:
Petitioner, an inmate at Attica Correctional Facility, commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated inmate rules 102.10 (7 NYCRR 270.2[B][3][i] ) and 104.11 (7 NYCRR 270.2 [B][5][ii] ) by threatening another inmate with violence. Petitioner failed to preserve for our review his contention that the hearing officer engaged in an off-the-record conversation with a witness for respondent ( see Matter of Jones v. Fischer, 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220;Matter of Martinez v. Johnson, 255 A.D.2d 967, 967, 679 N.Y.S.2d 868). In any event, petitioner has not established that any such off-the-record conversation took place. Petitioner also failed to preserve his further contention that the hearing officer deprived him of his right to call witnesses at the disciplinary hearing, and we note, moreover, that petitioner did not exhaust his administrative remedies with respect to that contention ( see Peek v. Dennison, 39 A.D.3d 1239, 1240, 835 N.Y.S.2d 783,appeal dismissed9 N.Y.3d 860, 840 N.Y.S.2d 759, 872 N.E.2d 872). In any event, that contention is belied by the record. Finally, we note that petitioner has abandoned his contention, raised in the petition, that the determination is not supported by substantial evidence ( see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.