| Matter of Polite v Goord |
| 2008 NY Slip Op 01890 [49 AD3d 944] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Eric Polite, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of making threats, beingout of place, leaving an assigned area and violating the movement regulations. Respondentmodified the determination upon administrative appeal by dismissing the threats charge, butotherwise affirmed the determination and did not reduce the penalty imposed. This CPLR article78 proceeding ensued.[FN*]
Petitioner contends that he was denied adequate employee assistance and that he wasimproperly denied the right to call certain witnesses. However, the only objections petitioner[*2]made at the hearing were with respect to the denial ofwitnesses he requested to testify regarding the incident leading to the threats charge. Likewise,petitioner's claim of inadequate assistance is directed solely to the assistance as it pertained to thethreats charge. Inasmuch as that charge was dismissed upon administrative appeal, petitioner'sclaims with respect to such are moot (see Matter of May v Selsky, 291 AD2d 591, 592[2002]). Moreover, because petitioner did not object at the hearing to the alleged denial of hiswitnesses with respect to the remaining charges, this claim is not preserved for our review (see Matter of Tafari v Brown, 47 AD3d979 [2008]; Matter of Carter vGoord, 45 AD3d 1077, 1078 [2007]).
Cardona, P.J., Mercure, Peters, Carpinello and Rose, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Although petitioner arguablyraised the issue of substantial evidence in the petition and, therefore, the proceeding was properlytransferred to this Court, he has since abandoned this claim by not raising it in his brief (see Matter of Coleman v Goord, 39AD3d 1048, 1048 n [2007]).