| Matter of Gibson v Fischer |
| 2008 NY Slip Op 08574 [56 AD3d 916] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Dana Gibson, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents.
Peters, J. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered December 4,2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with creating a disturbance,assaulting staff and refusing a direct order. Following a tier III hearing, he was found guilty of allcharges. On administrative appeal, the determination was upheld, although the penalty wasmodified. Petitioner thereafter commenced this CPLR article 78 proceeding challenging thedetermination. Supreme Court dismissed the petition, prompting this appeal.
We affirm. Initially, as petitioner's claim that the Hearing Officer relied on evidence outsidethe record for the determination of guilt was not timely raised on administrative appeal, the issueis not properly before us (see Matter ofConstantino v Goord, 33 AD3d 1093, 1094 [2006]; Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]).Furthermore, petitioner's contention that the determination of guilt was not supported by therequisite substantial evidence is unpreserved for our review inasmuch as it is raised for the firsttime on this appeal (see Matter [*2]of Williams v Goord, 47 AD3d 1170, 1171 [2008]). In anyevent, the detailed misbehavior report, related documentary evidence and the hearing testimonysupport the determination of guilt (seeMatter of Green v Goord, 26 AD3d 562, 563 [2006]). Finally, contrary to petitioner'scontention, he was properly excluded from the hearing during a mental health professional'sconfidential health assessment testimony (see 7 NYCRR 254.6 [c] [3]; Matter of Lamage v Selsky, 47 AD3d1144, 1145 [2008]).
Cardona, P.J., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.