Amato v. Fischer

Appeal from a judgment of the Supreme Court (Breslin, J.), entered April 9, 2013 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 a prison disciplinary rule. After detecting an odor emanating from petitioner’s cell, a correction officer recovered a container of liquid that tested positive for alcohol. As a result, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting inmates from possessing alcohol. He was found guilty of the charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. Thereafter, petitioner commenced this CPLR article 78 proceeding challenging the determination and Supreme Court dismissed the petition. Petitioner now appeals. Petitioner’s sole contention is that he was denied his constitutional right to call witnesses at the hearing. Specifically, he asserts that the Hearing Officer improperly denied him the [1101] right to have eight porters testify. The record, however, reveals that he did not object when the Hearing Officer informed him that she would only allow him to have two porters testify or when she advised him that two others had indicated their refusal to testify. The Hearing Officer proceeded to have the two porters testify, as well as a correction sergeant and a correction officer. When the Hearing Officer asked if petitioner had other witnesses, he requested one additional correction officer who also testified. Petitioner made no other requests for witnesses or protested those who were denied. In view of the foregoing, petitioner has failed to preserve his claim that he was denied his constitutional right to call witnesses (see Matter of Brown v Venettozzi, 79 AD3d 1510, 1511 [2010]; Matter of Roussopoulas v Cunningham, 76 AD3d 730, 731 [2010]). Peters, PJ., Stein, McCarthy and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.