| Matter of Finley v Goord |
| 2008 NY Slip Op 00025 [47 AD3d 995] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Steven Finley, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered July 17,2006 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent finding petitioner guilty of violatingcertain prison disciplinary rules.
Following his conviction of attempted escape in the first degree (three counts), conspiracy inthe fourth degree and promoting prison contraband in the second degree, petitioner was chargedwith violating prison disciplinary rules relating to escape (three occasions) and committing PenalLaw offenses. After a tier III disciplinary hearing, petitioner was found guilty of the charges, adetermination which was affirmed on administrative appeal. He then commenced this CPLRarticle 78 proceeding alleging that the denial of his request to call certain witnesses and thefailure to provide requested records violated his right to establish a mitigation of penalty defense.Supreme Court dismissed the petition on the ground that he had failed to raise this issue at thehearing, prompting this appeal.
We affirm. The record reveals that petitioner's mitigation of penalty issue was not raised atthe hearing or on his administrative appeal and, thus, is not preserved for our review (see Matter of Filpo v Goord, 37 AD3d891, 892 [2007]). To the extent that petitioner points to inaudible gaps in the transcript ofthe disciplinary hearing, we find that they are insignificant and intermittent and, thus, do notprohibit meaningful review (see Matterof Redmond v Goord, 6 AD3d 1207 [2004]). More importantly, the context in whichthese gaps occur indicates that they would not support petitioner's now proffered mitigation ofpenalty defense in any event.
Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed,without costs.