| Matter of Washington v Fischer |
| 2011 NY Slip Op 05401 [85 AD3d 1484] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Viscount Washington, Appellant, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered January 3, 2011 inAlbany 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.
While attempting to visit petitioner at the correctional facility where he was incarcerated,petitioner's wife was found by a correction investigator to be in possession of a significantquantity of tobacco. She revealed to the investigator that she had conspired with petitioner tobring tobacco and marihuana into the correctional facility and had done so on numerous prioroccasions. As a result, petitioner was charged in a misbehavior report with smuggling andconspiring to possess drugs. He was found guilty of the charges at the conclusion of a tier IIIdisciplinary hearing and the determination was affirmed on administrative appeal with amodified penalty. This CPLR article 78 proceeding ensued.
Petitioner claims that the Hearing Officer exhibited bias by effectively participating in theinvestigator's interrogation of him during an interview conducted prior to the hearing. Thisspecific claim, however, has not been preserved for our review due to petitioner's failure to raiseit at the hearing (see Matter of Madisonv Cunningham, 67 AD3d 1141, 1142 [2009]). Petitioner further asserts that he wasdenied adequate employee assistance because his assistant failed to interview his wife prior to thehearing. Notwithstanding the assistant's failure to interview [*2]petitioner's wife, her written statement was read into the record atthe hearing and, after an adjournment, she testified and answered petitioner's questions. Thus,any omission by the assistant was remedied at the hearing, and petitioner has not demonstratedprejudice (see Matter of Sierra v Dubray, 58 AD3d 970, 971 [2009]; Matter of Coleman v Goord, 39 AD3d1048 [2007]). Petitioner's remaining arguments regarding the disciplinary determination arewithout merit. His challenge to the denial of his Freedom of Information Law request is notproperly before us, as it was not challenged in the petition, but has been raised for the first timein petitioner's brief (see Matter of Pettusv Department of Correctional Servs., 76 AD3d 1152, 1153 [2010]; Matter of Lamb v Goord, 27 AD3d807, 808 [2006]).
Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.