Opinion
2015-09-17
In the Matter of Gilberto OLIBENCIA, Appellant, v. New York STATE DEPARTMENT OF CORRECTIONS and Community Supervision, Respondent.
Gilberto Olibencia, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Gilberto Olibencia, Wallkill, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, LYNCH and DEVINE, JJ.
Appeal from a judgment of the Supreme Court (Ceresia, J.), entered January 8, 2015 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possession of a weapon after a search of his cell uncovered a shank secured inside his cell locker with masking tape that was the same color as the cell locker. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal. Supreme Court dismissed petitioner's subsequent CPLR article 78 proceeding and this appeal ensued.
We affirm. Petitioner contends that he was improperly denied documentary evidence regarding when the cell was last painted and how many times it had been searched since then. However, petitioner waived his objection to present documentary evidence when, after the Hearing Officer asked him if there were any procedural objections, he responded in the negative ( see Matter of Fulmore v. Prack, 116 A.D.3d 1281, 1282, 983 N.Y.S.2d 748 [2014]; Matter of Green v. Bradt, 91 A.D.3d 1235, 1237, 937 N.Y.S.2d 456 [2012], lv. denied19 N.Y.3d 802, 2012 WL 1538331 [2012] ). In any event, petitioner's contention is without merit as the record reflects that the requested documents do not exist ( see Matter of Wilson v. Annucci, 129 A.D.3d 1422, 1422, 10 N.Y.S.3d 908 [2015]; Matter of Mendez v. Annucci, 126 A.D.3d 1216, 1217, 3 N.Y.S.3d 640 [2015] ).
ORDERED that the judgment is affirmed, without costs.