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Coleman v. Selsky

State of New York Supreme Court, Appellate Division Third Judicial Department


September 17, 2009

IN THE MATTER OF DERRICK COLEMAN, APPELLANT,
v.
DONALD SELSKY, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

Before: Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Devine, J.), entered November 26, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner, an inmate, received a misbehavior report charging him with a violation of the prison disciplinary rules prohibiting the making of threats, interference with facility personnel and harassment. The charges stemmed from several incidents during which petitioner, among other things, grabbed a correction officer by the forearms and handed her a note inferring that he could hold her hostage. Following a tier III disciplinary hearing, petitioner was found guilty on all charges. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of his guilt. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Petitioner's primary contention on appeal is that, during his tier III disciplinary hearing, the Hearing Officer failed to properly investigate the reasons why petitioner's requested witnesses refused to testify. This issue is unpreserved for our review inasmuch as, when informed during the disciplinary hearing of the witnesses' refusal, petitioner failed to object or request that the Hearing Officer make further inquiry (see Matter of Hassan v Selsky, 27 AD3d 931, 931 [2006]; Matter of Ryan v Goord, 12 AD3d 799, 800 [2004]).

Petitioner's remaining contentions are rendered academic by our decision.

Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090917

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