| Matter of Russo v Annucci |
| 2015 NY Slip Op 05737 [130 AD3d 1124] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Jonathan Russo, Petitioner, v AnthonyJ. Annucci, as Acting Commissioner of Corrections and Community Supervision,Respondent. |
Jonathan Russo, New York City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondentwhich found petitioner guilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of assaultingstaff, refusing a direct order, violent conduct, interfering with an employee and refusing afrisk procedure. According to the misbehavior report, petitioner was ordered to assume apat-frisk position on the wall and, when a correction officer asked if he had something inhis mouth, petitioner turned and punched the correction officer in the face. Thedetermination of guilt was affirmed upon administrative appeal and this CPLR article 78proceeding ensued.
We confirm. The detailed misbehavior report, together with various reports andcorroborating testimony from other correction officers, provide substantial evidence tosupport the determination of guilt (see Matter of Sital v Fischer, 73 AD3d 1348, 1348 [2010],lv denied 15 NY3d 707 [2010]). Petitioner's remaining contentions, includingthat the Hearing Officer should have assessed his mental health status, are raised for thefirst time "and this Court 'ha[s] no discretionary authority or interest of justicejurisdiction' to review unpreserved issues in such special proceedings" (Matter of Reed v Artus, 39AD3d 1056, 1057 [2007], quoting Matter of Khan v New York State Dept. ofHealth, 96 NY2d 879, 880 [2001]).
McCarthy, J.P., Garry, Rose and Devine, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.