Opinion
519945
07-02-2015
In the Matter of Jonathan RUSSO, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Jonathan Russo, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Jonathan Russo, New York City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Opinion 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 a tier III disciplinary hearing, petitioner was found guilty of assaulting staff, refusing a direct order, violent conduct, interfering with an employee and refusing a frisk procedure. According to the misbehavior report, petitioner was ordered to assume a pat-frisk position on the wall and, when a correction officer asked if he had something in his mouth, petitioner turned and punched the correction officer in the face. The determination of guilt was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report, together with various reports and corroborating testimony from other correction officers, provide substantial evidence to support the determination of guilt (see Matter of Sital v. Fischer, 73 A.D.3d 1348, 1348, 901 N.Y.S.2d 403 [2010], lv. denied 15 N.Y.3d 707, 2010 WL 3546371 [2010] ). Petitioner's remaining contentions, including that the Hearing Officer should have assessed his mental health status, are raised for the first time “and this Court ‘ha[s] no discretionary authority or interest of justice jurisdiction’ to review unpreserved issues in such special proceedings” (Matter of Reed v. Artus, 39 A.D.3d 1056, 1057, 835 N.Y.S.2d 472 [2007], quoting Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., GARRY, ROSE and DEVINE, JJ., concur.