Fordham v. Lee , 946 N.Y.S.2d 901 ( 2012 )

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

A large number of inmates were fighting in the recreation yard and refused orders to stop until a warning shot was fired into the air. Petitioner was identified as one of the inmates and charged in a misbehavior report with refusing a direct order, fighting, creating a disturbance and engaging in violent conduct. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued,^* and we now confirm.

Initially, we reject petitioner’s claim that he was improperly denied the right to have the correction officer who escorted him back to his cell testify at the hearing. The officer was not present in the yard where the inmates were fighting and his testimony, therefore, had no relevance to the charges against petitioner (see Matter of Lozada v Cook, 67 AD3d 1232, 1233 [2009], lv denied 14 NY3d 706 [2010]; Matter of Thompson v Votraw, 65 AD3d 1403, 1404 [2009]). Petitioner’s claim that he was denied effective employee assistance has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Hernandez v Bezio, 76 AD3d 1148, 1148-1149 [2010]; Matter of Hawkins v Fischer, 72 AD3d 1378, 1379 [2010]). His remaining contentions have been considered and, to the extent that they have been preserved for our review, they are unpersuasive.

Mercure, J.P., Rose, Spain, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

* We note that petitioner did not raise the issue of substantial evidence in the verified petition and, as such, the proceeding was improperly transferred to this Court (see Matter of Barone v Prack, 92 AD3d 999, 999 n [2012]; Matter of Lewis v Lape, 90 AD3d 1259, 1259 n [2011], lv denied 18 NY3d 809 [2012]). We, nevertheless, retain jurisdiction and address petitioner’s claims in the interest of judicial economy.