Hand v. Gardner

Appeal from a judgment of the Supreme Court (Cahill, J.), entered May 20, 2013 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating a prison disciplinary rule. Following a prison disciplinary hearing, petitioner was found guilty of possession of an altered item after he was observed pulling a green drag line, appearing to have been fashioned from the fibers of a winter hat, up to his cell with a newspaper attached. The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 989 proceeding. Supreme Court dismissed the petition and this appeal ensued. Petitioner’s contention that he was improperly denied a videotape of the incident is without merit as the record reveals that the videotape did not exist due to an equipment malfunction. Under such circumstances, the Hearing Officer cannot be faulted for failing to produce a videotape that did not exist (see Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]). Petitioner’s remaining contentions, having been raised for the first time on this appeal, are unpreserved for our review. Lahtinen, J.E, Stein, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.