State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 13, 2015 519780
________________________________
In the Matter of SAMMY GERACI,
Appellant,
v
MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: June 8, 2015
Before: McCarthy, J.P., Garry, Rose and Clark, JJ.
__________
Sammy Geraci, Attica, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (McNally, J.),
entered July 17, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent finding
petitioner guilty of violating a prison disciplinary rule.
During the course of an investigation, correction officials
received confidential information identifying petitioner as the
perpetrator of an attack upon an inmate. As a result, he was
charged in a misbehavior report with assaulting an inmate.
Petitioner was found guilty of the charge following a tier III
disciplinary hearing and the determination was affirmed on
administrative appeal. He then commenced this CPLR article 78
proceeding challenging the determination and, following joinder
of issue, Supreme Court dismissed the petition. Petitioner now
-2- 519780
appeals.
Petitioner's primary contention is that he was improperly
denied the right to call the inmate who was assaulted as a
witness at the hearing. This potential witness, however, never
agreed to testify and signed a refusal form that was not
challenged by petitioner at the hearing. Given petitioner's
"'fail[ure] to object or request that the Hearing Officer make
further inquiry,'" his claim is not preserved for our review
(Matter of Rafi v Venettozzi, 120 AD3d 1481, 1482 [2014], quoting
Matter of Taylor v Fischer, 89 AD3d 1298 [2011]). Petitioner's
remaining arguments are also unpreserved. Therefore, Supreme
Court properly dismissed the petition.
McCarthy, J.P., Garry, Rose and Clark, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court