Opinion
04-21-2016
In the Matter of Naldy RODRIGUEZ, Petitioner, v. Brain FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Naldy Rodriguez, Cape Vincent, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Naldy Rodriguez, Cape Vincent, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was ordered to submit a urine specimen for testing and it twice tested positive for the presence of K2–2, synthetic marihuana. As a result, he was charged in a misbehavior report with using an intoxicant. Following a tier III disciplinary hearing at which he pleaded guilty to the charge, he was found guilty as charged and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Initially, while petitioner challenges the sufficiency of the evidence supporting the charge of which he was found guilty, inasmuch as he pleaded guilty to the charge, he is precluded from raising this argument (see Matter of Abrahams v. Annucci, 134 A.D.3d 1368, 1369, 21 N.Y.S.3d 766 [2015]; Matter of Kim v. Annucci, 128 A.D.3d 1196, 1197, 8 N.Y.S.3d 495 [2015] ). To the extent that petitioner argues that he was denied the right to call witnesses at the hearing, the record reflects that he did not request any witnesses on his witness request form and, at the hearing, he unequivocally stated that he would not be calling any witnesses and declined when given the opportunity to do so (see Matter of Merritt v. Fisher, 108 A.D.3d 993, 994, 969 N.Y.S.2d 248 [2013]; Matter of Green v. Fischer, 77 A.D.3d 1011, 1012, 908 N.Y.S.2d 757 [2010], lv. denied 16 N.Y.3d 710, 2011 WL 1584761 [2011], cert. denied ––– U.S. ––––, 132 S.Ct. 1047, 181 L.Ed.2d 769 [2012] ). Thus, we find that petitioner waived any objection related to his right to call witnesses (see Matter of Olibencia v. New York State Dept. of Corr. & Community Supervision, 131 A.D.3d 1318, 1318, 16 N.Y.S.3d 345 [2015] ). Petitioner's remaining claims were not preserved for our review and may not be considered (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, 1250, 23 N.Y.S.3d 488 [2016] ). ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., LAHTINEN, EGAN JR. and ROSE, JJ., concur.