Pineda v. Goord

Appeal from a judgment of the Supreme Court (Spargo, J.), entered February 21, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition. Following a tier III disciplinary hearing, petitioner was found guilty of assaulting staff and refusing a direct order. The determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, asserting that he was denied the right to have certain witnesses testify at the hearing and that some witnesses were improperly interviewed by the Hearing Officer out of petitioner’s presence. Respondents moved to dismiss the petition on the ground that petitioner failed to raise these claims during the administrative hearing. Supreme Court granted the motion and this appeal ensued. We affirm. The transcript of the disciplinary hearing discloses that petitioner did not raise any objections concerning the absence of witnesses or the Hearing Officer’s decision to interview them outside his presence. Consequently, these claims have not been preserved for our review (see Matter of Kilgore v Goord, 273 AD2d 695, 696 [2000]). While petitioner also failed to preserve his challenge to the sufficiency of the transcript, were we to consider it, we would not find that the gaps in the transcript are so significant as to prevent meaningful review (see Matter of Schuler v McCray, 8 AD3d 777, 778 [2004]). Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.