| Matter of Blanco v Selsky |
| 2007 NY Slip Op 09026 [45 AD3d 679] |
| November 13, 2007 |
| Appellate Division, Second Department |
| In the Matter of Carlos Blanco, Petitioner, v DonaldSelsky, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and MarionR. Buchbinder of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent ofthe Fishkill Correctional Facility dated November 24, 2006, which confirmed a determination ofa Hearing Officer dated February 24, 2006, made after a tier III disciplinary hearing, finding thepetitioner guilty of violating prison rules and imposing a penalty.
Adjudged that the petition is denied and the proceeding is dismissed, without costs ordisbursements.
When reviewing a prison disciplinary determination, the court must decide only whether thedetermination is supported by substantial evidence (see Matter of Ramsey v Phillips, 11 AD3d 470 [2004]; Matterof Glover v Goord, 262 AD2d 483 [1999]). Here, a review of the record, including themisbehavior report and the testimony of Correction Officer Schuck, reveals that there wassubstantial evidence to support the respondent's determination that the petitioner violated prisonrules. The credibility issues were resolved by the Hearing Officer as the trier of fact and weperceive no basis upon which to disturb his determination (see Matter of Gilzene v McGinnis,300 AD2d 658 [2002]; Matter of Ramos v Goord, 286 AD2d 392 [2001]; Matterof Rivera v Selsky, 266 AD2d 295 [1999]).
The petitioner contends that he was deprived of the right to call a witness due to the HearingOfficer's refusal to ask Schuck how he had determined that the wetness he had observed wasurine. In his administrative appeal, however, the petitioner did not allege that the Hearing Officerhad refused his request to pose this question to Schuck. The petitioner may not now [*2]challenge the Hearing Officer's refusal to ask Schuck that particularquestion. "Judicial review of administrative determinations pursuant to CPLR article 78 islimited to questions of law [and] [u]npreserved issues are not issues of law" (Matter of Khanv New York State Dept. of Health, 96 NY2d 879, 880 [2001]). When a petitioner in aproceeding pursuant to CPLR article 78 raises an unpreserved issue, the Appellate Division hasno discretionary authority or interest of justice jurisdiction to review the issue (Matter ofKhan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; see Matter of Levi vCoughlin, 185 AD2d 345 [1992]). Consequently, we do not consider that contention.Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.