Brooks v. State of New York Department of Correctional Services

Sep 11, 1997
Versions:242 A.D.2d 807
661 N.Y.S.2d 1018
1997 N.Y. App. Div. LEXIS 8665

Appeal from a judgment of the Supreme Court (Canfield, J.), entered January 15, 1997 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating certain prison disciplinary rules after a hearing pursuant to charges contained in five misbehavior reports. By failing to object to the procedure of combining the five misbehavior reports into one tier III hearing, petitioner waived any challenge thereto (see, Matter of Alstranner v Selsky, 238 AD2d 658). Contrary to petitioner’s assertions, the record clearly demonstrates that petitioner was aware that the misbehavior reports were being combined into a single hearing. We do find, however, that Supreme Court erred in awarding respondents $20 in motion costs given the fact that petitioner’s motion to proceed as a poor person had previously been granted (see, CPLR 1102 [d]; see also, Cross v Town of Harmony, 257 App Div 1029, affd 285 NY 656). Petitioner’s remaining contentions have been reviewed and are without merit.

Cardona, P. J., Mikoll, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as imposed motion costs against petitioner, and, as so modified, affirmed.