Rosales v. Bezio

Appeal from a judgment of the Supreme Court (Feldstein, J), entered June 18, 2010 in Franklin County, which dismissed [1477] 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 certain prison disciplinary rules. A correction officer observed petitioner, a prison inmate, in the yard exchanging punches with another inmate. Both inmates ignored a direct order to stop, after which petitioner was observed slashing the other inmate in the face with a razor blade. Thereafter, petitioner was charged in a misbehavior report with assault, fighting, violent conduct, creating a disturbance, refusing a direct order and possessing a weapon. He was found guilty of those charges following a tier III disciplinary hearing and that determination was affirmed on administrative review. Petitioner then commenced this CPLR article 78 proceeding and Supreme Court dismissed the petition. Petitioner now appeals and we affirm. Petitioner’s sole contention is that he was deprived of his right to call a witness, alleging that the inmate who testified at the hearing was not the inmate he had requested. However, inasmuch as he failed to make any objection during the hearing, at a time when the Hearing Officer could have corrected the alleged error, we find petitioner’s argument unpreserved for our review (see Matter of Tafari v Selsky, 77 AD3d 992, 992-993 [2010], lv dismissed 16 NY3d 783 [2011]; Matter of Reese v Bezio, 75 AD3d 1029,1030 [2010]). Further, we disagree with petitioner that the Hearing Officer should have been on notice of the alleged error, inasmuch as the inmate witness responded when the Hearing Officer called him by the correct last name, stated that he was present during the incident and gave answers favorable to petitioner’s defense. We have examined petitioner’s remaining contentions and find them to be without merit. Peters, J.P., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.