| Matter of Tafari v Selsky |
| 2010 NY Slip Op 07088 [77 AD3d 992] |
| October 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Injah Tafari, Appellant, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 24, 2007 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Commissioner of Correctional Services findingpetitioner guilty of violating certain prison disciplinary rules.
As a result of multiple cell searches and an incident in which he allegedly threatened afacility employee, petitioner was served with two misbehavior reports charging him with variousprison disciplinary rule violations. A tier III disciplinary hearing was held to address both reports,after which petitioner was found guilty of making threats, tampering with property, possessingproperty in an unauthorized area and improperly using mess hall utensils. On administrativereview, the determination was affirmed with a modification to the penalty assessed. Petitionerthereafter commenced this CPLR article 78 proceeding seeking to annul the determination ofguilt. Supreme Court dismissed the application, finding petitioner's procedural contentions to beeither unpreserved or without merit. Petitioner appeals and we affirm.
With regard to petitioner's contention that the Hearing Officer improperly denied his right tointroduce a videotape of the incident in which he was accused of threatening an employee, wenote that the record demonstrates that no such videotape existed (see Matter of Parker v Fischer, 70AD3d 1086, 1087 [2010]; Matter ofVigliotti v Duncan, 10 AD3d 776, 777[*2][2004], lvdismissed 4 NY3d 738 [2004]). Petitioner was not impermissibly denied the right to call thedeputy superintendent as a witness as the record shows that she testified at the hearing andpetitioner was allowed to question her. Petitioner's contention that he was improperly denied theright to call the nurse administrator as a witness is unpreserved for our review by his failure toobject at the hearing (see Matter ofCornwall v Fischer, 74 AD3d 1507 [2010]; Matter of McIver v Goord, 37 AD3d 943, 945 [2007]). Finally, ourreview of the record confirms that the determination was the result of the evidence presentedagainst petitioner, rather than any alleged hearing officer bias (see Matter of Sital v Fischer, 73 AD3d1348 [2010]).
Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed, without costs.