Marino v. Coombe

Appeal from a’judgment of the Supreme Court (Canfield, J.), entered October 10, 1995 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules. After an altercation with correction officers, petitioner was found guilty of exhibiting violent conduct, creating a disturbance, assaulting staff and engaging in a demonstration. He raises two procedural objections to the administrative determination. He asserts that he was not adequately apprised of the prison disciplinary rules and that he was not provided with copies of the unusual incident report or the use of force report. Supreme Court found these claims to be without merit and dismissed the petition. Based upon our review of the record, we agree. Petitioner claims that he was not given sufficient notice of 789 the prison disciplinary rules because he was provided with a rule book written in Spanish instead of English. Significantly, he signed the Spanish acknowledgment for receipt of the rule book and there is no record evidence that he does not understand Spanish. Under these circumstances, we find that petitioner has waived his right to claim that he was not provided adequate notice. Furthermore, inasmuch as petitioner did not request copies of the unusual incident report or use of force report prior to or at the administrative hearing, we find that he has failed to preserve his second claim for review (see, Matter of Shaffer v Leonardo, 179 AD2d 980, lv denied 79 NY2d 758; Matter of Newman v Coughlin, 110 AD2d 981). Accordingly, Supreme Court properly dismissed the petition. Cardona, P. J., Mercure, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.