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Madison v. Cunningham

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


November 12, 2009

IN THE MATTER OF DIALLORAFIK A. MADISON, APPELLANT,
v.
RAYMOND J. CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 30, 2009

Before: Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered July 10, 2008 in Sullivan 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.

Petitioner was observed by a correction officer in an area of the correctional facility that he failed, before leaving his cell, to disclose on the inmate tracking sheet. When petitioner saw the officer, he fled to a nearby classroom. As a result, petitioner was charged in a misbehavior report with being out of place and violating facility movement procedures. He was found guilty of the charges at the conclusion of a tier II disciplinary hearing and he subsequently commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, resulting in this appeal.

The claims raised by petitioner on the instant appeal pertain primarily to the Hearing Officer's alleged bias. Specifically, he asserts that the Hearing Officer should never have been appointed to hear the case because he was involved in the investigation of the incident, that he had prior knowledge of the pertinent facts relating thereto and that he made prejudicial comments during the hearing. The record, however, reveals that petitioner never raised these claims at the hearing. In view of this, they are not preserved for our review (see Matter of Reid v Goord, 34 AD3d 954, 955 [2006]; Matter of Cunningham v Selsky, 29 AD3d 1254, 1255 [2006]). Petitioner's remaining claim of inadequate notice is also unpreserved. Thus, the determination must be confirmed.

Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20091112

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