| Matter of Lawson v Commissioner of Correctional Servs. |
| 2010 NY Slip Op 04074 [73 AD3d 1296] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of Neil Lawson, Petitioner, v Commissioner ofCorrectional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
Petitioner, a prison inmate, was served with a misbehavior report after his girlfriend gave astatement to investigators that he had solicited her to smuggle marihuana into the facility and, infact, she had done so on a prior occasion. Following a tier III disciplinary hearing, petitioner wasfound guilty of the charges of smuggling and conspiring to introduce marihuana into the facility.His administrative appeal proved unavailing and, thus, petitioner commenced this CPLR article78 proceeding.
The misbehavior report, unusual incident report, hearing testimony from the InspectorGeneral's investigator and written statement from petitioner's girlfriend provide substantialevidence to support the determination of guilt (see Matter of Sanders v LaClair, 67 AD3d 1226, 1226 [2009]; Matter of Frazier v Prack, 62 AD3d1185, 1186 [2009]). Although petitioner now contends that his due process rights wereviolated by the fact that his girlfriend did not testify at the hearing, that argument is unpreservedfor our review, inasmuch as he failed to raise it at the hearing (see Matter of Bosquet v Bezio, 69AD3d 1257, 1258 [2010]; Matterof Terrence v [*2]Fischer, 64 AD3d 1110, 1111 [2009]).
Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.