Opinion
440 CA 18–01187
06-14-2019
In the Matter of Travis J. CORNELL, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment dismissing his amended CPLR article 78 petition to annul respondent's determination, following a tier III hearing, that he violated various inmate rules. We affirm.
Insofar as relevant here, 7 NYCRR 254.1 precludes a person who "investigated the incident" from presiding at a tier III inmate disciplinary hearing. Contrary to petitioner's contention, however, the Hearing Officer in this case did not "investigate" the subject incident within the meaning of 7 NYCRR 254.1. Rather, the Hearing Officer merely authorized the removal of the suspected contraband from an evidence box for testing, and it is well established that such ministerial and "tangential" involvement in an investigation is not disqualifying under 7 NYCRR 254.1 ( Matter of Grant v. Coombe, 255 A.D.2d 996, 996, 680 N.Y.S.2d 31 [4th Dept. 1998] ; see Matter of Barnes v. Lee, 153 A.D.3d 1543, 1543, 60 N.Y.S.3d 708 [3d Dept. 2017] ; Matter of Perkins v. Fischer, 78 A.D.3d 1355, 1356, 911 N.Y.S.2d 226 [3d Dept. 2010] ). Contrary to petitioner's further contention, the record does not establish any bias on the part of the Hearing Officer or that his determination flowed from any alleged bias (see Matter of Caldara v. Annucci, 160 A.D.3d 1173, 1174, 75 N.Y.S.3d 118 [3d Dept. 2018] ; Matter of Battle v. Pignotti, 155 A.D.3d 1213, 1213, 63 N.Y.S.3d 269 [3d Dept. 2017] ).Finally, petitioner contends in passing that he was "denied his minimal due process rights under ... the Constitution ... when the hearing officer intentionally omit[ted] his involvement in [the] investigation." Petitioner did not raise that " ‘specific argument’ " in his amended petition, and it is therefore unpreserved for appellate review ( U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 33 N.Y.3d 84, 89, 98 N.Y.S.3d 530, 122 N.E.3d 47 [2019], quoting Matter of New York City Asbestos Litig., 27 N.Y.3d 1172, 1176, 38 N.Y.S.3d 85, 59 N.E.3d 1197 [2016] ; see e.g. Matter of Johnson v. Annucci, 161 A.D.3d 1471, 1472, 73 N.Y.S.3d 914 [3d Dept. 2018] ; Matter of Pigmentel v. Selsky, 19 A.D.3d 816, 817, 797 N.Y.S.2d 160 [3d Dept. 2005] ). We have no discretionary authority to reach unpreserved contentions in proceedings to review administrative determinations pursuant to CPLR article 78 (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ; Matter of Barnes v. Venettozzi, 135 A.D.3d 1250, 1251, 23 N.Y.S.3d 488 [3d Dept. 2016] ).