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Lawson v. Commissioner of Correctional Services

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


May 13, 2010

IN THE MATTER OF NEIL LAWSON, PETITIONER,
v.
COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ.

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.

Petitioner, a prison inmate, was served with a misbehavior report after his girlfriend gave a statement to investigators that he had solicited her to smuggle marihuana into the facility and, in fact, she had done so on a prior occasion. Following a tier III disciplinary hearing, petitioner was found guilty of the charges of smuggling and conspiring to introduce marihuana into the facility. His administrative appeal proved unavailing and, thus, petitioner commenced this CPLR article 78 proceeding.

The misbehavior report, unusual incident report, hearing testimony from the Inspector General's investigator and written statement from petitioner's girlfriend provide substantial evidence to support the determination of guilt (see Matter of Sanders v LaClair, 67 AD3d 1226, 1226 [2009]; Matter of Frazier v Prack, 62 AD3d 1185, 1186 [2009]). Although petitioner now contends that his due process rights were violated by the fact that his girlfriend did not testify at the hearing, that argument is unpreserved for our review, inasmuch as he failed to raise it at the hearing (see Matter of Bosquet v Bezio, 69 AD3d 1257, 1258 [2010]; Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20100513

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