Reed v. Artus

Apr 19, 2007
Versions:

In the Matter of ROBERT I. REED, Appellant, v DALE ARTUS, as Superintendent of Clinton Correctional Facility, Respondent. [835 NYS2d 472]—Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 5, 2006 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding him guilty of violating certain prison disciplinary rules.

Following a disturbance involving other inmates in the mess hall, a correction officer ordered petitioner to stop talking and to face the wall. He refused and used profane language toward the officer. As a result, he was charged in a misbehavior report with refusing a direct order, creating a disturbance, engaging in verbal harassment and interfering with an employee. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, which was eventually dismissed by Supreme Court. He now appeals.

Petitioner’s sole contention is that he was denied a videotape of the incident which allegedly would have exonerated him from any wrongdoing. The record discloses that the Hearing Officer was attentive to petitioner’s request and adjourned the hearing to ascertain whether there was a videotape depicting petitioner’s exchange with the officer in question. When the hearing was reconvened, the Hearing Officer advised petitioner that there was not, and petitioner accepted this explanation without raising a further objection. Consequently, he has failed to preserve his claim for our review (see e.g. Matter of Dotson v Coughlin, 191 AD2d 912, 913 [1993], lv denied 82 NY2d 651 [1993]), and this Court “ha[s] no discretionary authority or interest of justice jurisdiction” to review unpreserved issues in such special proceedings (Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; see Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Hamilton v Goord, 32 AD3d 642 [2006], lv denied 7 NY3d 715 [2006]).

Cardona, P.J., Peters, Spain, Mugglin and Rose, JJ., concur.

Ordered that the judgment is affirmed, without costs.