| Matter of Madison v Cunningham |
| 2009 NY Slip Op 08103 [67 AD3d 1141] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Diallorafik A. Madison, Appellant, v Raymond J.Cunningham, as Superintendent of Woodbourne Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Patrick J. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered July 10, 2008 inSullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding petitioner guilty of violating certainprison disciplinary rules.
Petitioner was observed by a correction officer in an area of the correctional facility that hefailed, before leaving his cell, to disclose on the inmate tracking sheet. When petitioner saw theofficer, he fled to a nearby classroom. As a result, petitioner was charged in a misbehavior reportwith being out of place and violating facility movement procedures. He was found guilty of thecharges at the conclusion of a tier II disciplinary hearing and he subsequently commenced thisCPLR article 78 proceeding. Supreme Court dismissed the petition, resulting in this appeal.
The claims raised by petitioner on the instant appeal pertain primarily to the HearingOfficer's alleged bias. Specifically, he asserts that the Hearing Officer should never have beenappointed to hear the case because he was involved in the investigation of the incident, that hehad prior knowledge of the pertinent facts relating thereto and that he made prejudicialcomments during the hearing. The record, however, reveals that petitioner never raised theseclaims at the hearing. In view of this, they are not preserved for our review (see Matter ofReid v Goord, 34 [*2]AD3d 954, 955 [2006]; Matter of Cunningham v Selsky, 29AD3d 1254, 1255 [2006]). Petitioner's remaining claim of inadequate notice is alsounpreserved. Thus, the determination must be confirmed.
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.