Opinion
04-21-2016
In the Matter of Hector LOPEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Hector Lopez, Fallsburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Hector Lopez, Fallsburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Opinion
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Superintendent of Sullivan Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with fighting, engaging in violent conduct, refusing a direct order and destroying state property after allegedly engaging in a physical altercation with a fellow inmate. Petitioner executed a waiver of his right to attend the tier II hearing. The hearing proceeded in his absence, at the conclusion of which petitioner was found guilty of all charges. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
Initially, although there are gaps in the hearing transcript, meaningful review is not precluded (see Matter of Pilet v. Annucci, 128 A.D.3d 1198, 1199, 7 N.Y.S.3d 734 [2015] ). To that end, the misbehavior report and testimony from its author who witnessed the fracas provide substantial evidence to support the determination of guilt (see Matter of Ramos v. Venettozzi, 131 A.D.3d 1309, 1310, 16 N.Y.S.3d 354 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 7433122 [2015]; Matter of McLeod v. Fischer, 122 A.D.3d 1037, 1037–1038, 994 N.Y.S.2d 737 [2014] ). Petitioner's contention that the hearing was improperly held in his absence given the Hearing Officer's failure to ascertain the basis for petitioner's execution of a waiver of appearance is not properly before this Court, as petitioner failed to preserve such issue by raising it in his administrative appeal (see Matter of Hamilton v. Goord, 32 A.D.3d 642, 643, 819 N.Y.S.2d 624 [2006], lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921 [2006]; Matter of Cayenne v. Goord, 16 A.D.3d 782, 783, 790 N.Y.S.2d 762 [2005] ). Furthermore, petitioner's procedural challenges to the hearing are unpreserved due to his failure to attend the hearing (see Matter of Douglas v. Bedard, 134 A.D.3d 1317, 1318, 21 N.Y.S.3d 488 [2015]; Matter of Kalwasinski v. Prack, 122 A.D.3d 990, 991, 994 N.Y.S.2d 481 [2014] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ., concur.