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In the Matter of Edwin Austin v. Brian Fischer

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


March 7, 2013

IN THE MATTER OF EDWIN AUSTIN, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Breslin, J.), entered April 24, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND ORDER

Calendar Date: January 24, 2013

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

Petitioner, a prison inmate, was charged with possession of drugs and a weapon after a search of his cell revealed marihuana and an altered state razor wrapped in a cardboard handle secreted under his mattress. Petitioner was found guilty of those charges following a tier III disciplinary hearing and that determination was affirmed on administrative appeal. He then commenced this CPLR article 78 proceeding and Supreme Court found petitioner's procedural contentions without merit and dismissed the petition. Petitioner now appeals.

We affirm, albeit on a different ground than relied upon by Supreme Court. Petitioner failed to object or raise any procedural issues before the Hearing Officer and, therefore, these issues are unpreserved for judicial review (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). Accordingly, the petition should have been dismissed on that basis.

Peters, P.J., Lahtinen, Spain and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130307

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