Allison v. Prack

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered May 4, 2011 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules. Petitioner stopped by the classroom of a female teacher without permission and made inappropriate comments that she perceived as threatening. As a result, he was charged in a misbehavior report with stalking, engaging in harassment and being out of place. He was found guilty of the charges following a tier III disciplinary hearing; however, the determination was subsequently reversed and a rehearing ordered. Following the rehearing, petitioner was again found guilty of the charges and 1570 the determination was affirmed on administrative appeal. Petitioner commenced this CPLR article 78 proceeding and, following joinder of issue, Supreme Court dismissed the petition. Petitioner appeals. We affirm. Initially, petitioner’s challenge to the timeliness of the rehearing has not been preserved for our review due to his failure to object at the rehearing (see Matter of Coleman v Fischer, 87 AD3d 778, 779 [2011]; Matter of Taylor v Fischer, 80 AD3d 1037, 1037 [2011]). Moreover, there is no merit to his claim that the denial of certain legal documents deprived him of a fair and impartial rehearing given his inability to identify any such documents improperly withheld (see Matter of Graziano v Selsky, 9 AD3d 752, 753 [2004]). We have considered petitioner’s remaining contentions and find them either unpreserved for our review or lacking in merit. Peters, P.J., Spain, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.