Finley v. Goord

Carpinello, J. Appeal from a judgment of the Supreme Court [996] (Kavanagh, J.), entered July 17, 2006 in Albany 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 certain prison disciplinary rules. Following his conviction of attempted escape in the first degree (three counts), conspiracy in the fourth degree and promoting prison contraband in the second degree, petitioner was charged with violating prison disciplinary rules relating to escape (three occasions) and committing Penal Law offenses. After a tier III disciplinary hearing, petitioner was found guilty of the charges, a determination which was affirmed on administrative appeal. He then commenced this CPLR article 78 proceeding alleging that the denial of his request to call certain witnesses and the failure to provide requested records violated his right to establish a mitigation of penalty defense. Supreme Court dismissed the petition on the ground that he had failed to raise this issue at the hearing, prompting this appeal. We affirm. The record reveals that petitioner’s mitigation of penalty issue was not raised at the hearing or on his administrative appeal and, thus, is not preserved for our review (see Matter of Filpo v Goord, 37 AD3d 891, 892 [2007]). To the extent that petitioner points to inaudible gaps in the transcript of the disciplinary hearing, we find that they are insignificant and intermittent and, thus, do not prohibit meaningful review (see Matter of Redmond v Goord, 6 AD3d 1207 [2004]). More importantly, the context in which these gaps occur indicates that they would not support petitioner’s now proffered mitigation of penalty defense in any event. Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.