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In the Matter of Gregory Brown v. D. Venettozzi

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


December 23, 2010

IN THE MATTER OF GREGORY BROWN, PETITIONER,
v.
D. VENETTOZZI, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 3, 2010

Before: Cardona, P.J., Spain, Kavanagh, Stein 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

A search of petitioner's prison cell revealed a shank about 73/4 inches long and shaped like an ice pick with a taped handle hidden in his locker. He was served with a misbehavior report charging him with possession of a weapon and was found guilty of that charge following a tier III disciplinary hearing. That determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.*fn1

We confirm. Petitioner's contention that his due process rights were violated by the Hearing Officer's denial of certain witnesses is unpreserved for our review by his failure to object during the hearing (see Matter of Reese v Bezio, 75 AD3d 1029 [2010]; Matter of Brown v Selsky, 49 AD3d 1108 [2008]). Further, we do not find that the penalty assessed to petitioner upon the finding of guilt was enhanced by his attempt to establish a retaliation defense. To the contrary, the Hearing Officer stated in the disposition that she found petitioner's attempt to introduce previous incidents to be "irrelevant."

Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court


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