| Matter of Perez v Fischer |
| 2009 NY Slip Op 03803 [62 AD3d 1104] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Eugene Perez, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 foundpetitioner guilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of making threatsagainst another inmate. That determination was affirmed upon administrative appeal and thisCPLR article 78 proceeding ensued.[FN*]
Petitioner's lone contention is that he was denied due process when the Hearing Officerdenied his request to call as a witness the officer who locked the prisoners in their cells on theday of the alleged incident. Initially, we note that, inasmuch as petitioner failed to raise thisargument in his administrative appeal, it is unpreserved for our review (see Matter of Gibson v Fischer, 56AD3d 916, 916 [2008]; Matter ofDavis v Burge, 55 AD3d 1162, 1162 [2008]). In any event, were we to reach the meritsof petitioner's claim, we would find it unavailing.[*2]Inasmuch asthe record demonstrates that the duty of locking prisoners in their cells on the day in questionwas a random assignment that could have been performed by one of nearly 50 officers on duty,we find that petitioner failed to provide sufficient information to identify the witness he soughtand, thus, we cannot say that the Hearing Officer failed to use reasonable efforts to secure thewitness (see Matter of Davila vSelsky, 48 AD3d 846, 847 [2008]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
Cardona, P.J., Peters, Kane, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Petitioner arguably raised theissue of substantial evidence in his petition and the proceeding was transferred to this Court onthat basis, but has abandoned that issue by failing to raise it in his brief (see Matter of Baxton v Goord, 51AD3d 1230, 1230 n [2008]).