Tafari v. Brown

Appeal from a judgment of the Supreme Court (Work, J.), entered October 16, 2006 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule. Following an incident in which petitioner used profane and disrespectful language toward a correction officer, he was charged in a misbehavior report with verbal harassment. He was found guilty of the charge following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued. Petitioner’s sole contention is that he was improperly denied inmate witnesses at the hearing. Significantly, these witnesses executed refusal forms signifying their desire not to testify, and petitioner did not object to the genuineness of their refusals at the hearing (see Matter of Gonzalez v West, 29 AD3d 1245, 1246 [2006] ) or to the Hearing Officer’s failure to make a further inquiry regarding the same (see Matter of Brown v Selsky, 37 AD3d 891, 891 [2007]). Therefore, he has failed to preserve his claim for our review. Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.