Woodward v. Selsky

Sep 13, 2007
Versions:43 A.D.3d 1209
841 N.Y.S.2d 411

—Appeal from a judgment of the Supreme Court (Bradley, J.), entered May 10, 2006 in Albany County, as amended by a judgment entered August 9, 2006 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of possession of a weapon. That determination was affirmed on administrative review, prompting petitioner to commence this CPLR article 78 proceeding which, in turn, was dismissed by Supreme Court. Petitioner now appeals.

To the extent that petitioner is contending that the underlying determination is not supported by substantial evidence, such claim has not been preserved for our review inasmuch as it is being raised for the first time on appeal (see Matter of Harrison v Selsky, 2 AD3d 1232 [2003]). In any event, the misbehavior report, related documentation, photographs and hearing testimony comprise the requisite substantial evidence (see Matter of Powell v Goord, 34 AD3d 876, 877 [2006]).

Petitioner‘s claim that he received inadequate employee assistance also is unavailing. The record reveals that through the efforts of both the assistant and the Hearing Officer, petitioner ultimately was provided with all of the documents that he requested (see Matter of Lam Trang v Goord, 283 AD2d 816, 817 [2001]). Moreover, petitioner failed to demonstrate that he was prejudiced by the alleged inadequacies (see Matter of Bernier v Goord, 3 AD3d 803 [2004]). Petitioner‘s remaining contentions, to the extent they are properly before us, have been examined and found to be without merit.

Mercure, J.P., Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.