State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 15, 2016 521879
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In the Matter of KENNETH
SAMUELS,
Appellant,
v MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: August 8, 2016
Before: Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.
__________
Kenneth Samuels, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (Bruening, J.),
entered December 10, 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 certain prison disciplinary rules.
Numerous inmates, including petitioner, were involved in a
fight in the yard and ignored directives to stop engaging in such
conduct. A video surveillance recording of the altercation
captured petitioner holding an inmate on the ground while another
inmate hit him with fence rails. As a result of this incident,
petitioner was charged in a misbehavior report with fighting,
refusing a direct order, engaging in violent conduct and creating
a disturbance. Following a tier III disciplinary hearing, he was
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found guilty of the charges and the determination was upheld on
administrative appeal. Petitioner commenced this CPLR article 78
proceeding challenging the determination on procedural grounds.
Following joinder of issue, Supreme Court dismissed the petition
and this appeal ensued.1
Petitioner argues that he was deprived of his
constitutional and regulatory right to call witnesses because the
Hearing Officer did not make an inquiry regarding a certain
inmate's refusal to testify and outright denied his request to
have a civilian witness testify. However, petitioner failed to
raise appropriate objections at the hearing, and, thus, has not
preserved these claims for our review (see Matter of Henry v
Fischer, 120 AD3d 868, 869 [2014], lv granted 24 NY3d 908 [2014];
Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]). For the
same reason, he has not preserved his claim that he was
improperly denied the use of force report (see Matter of
Rodriquez v Annucci, 136 AD3d 1083, 1084 [2016]; Matter of Henry
v Fischer, 120 AD3d at 869). Although petitioner was also not
provided with a videotape of a prior incident or a photograph
that was shown to the inmate who petitioner held down, they were
irrelevant to the charges at issue (see Matter of Allen v
Venettozzi, 139 AD3d 1208, 1209 [2016]; Matter of McKethan v
Selsky, 49 AD3d 1113, 1114 [2008]). Further, the misbehavior
report was sufficiently detailed with respect to the date, time,
location and nature of the incident to afford petitioner notice
of the charges to enable him to prepare a defense (see Matter of
Williams v Goord, 23 AD3d 972, 973 [2005]; Matter of Hernandez v
Selsky, 9 AD3d 662, 663 [2004], appeal dismissed and lv denied 3
NY3d 698 [2004]). Therefore, the petition was properly
dismissed.
Garry, J.P., Rose, Devine, Clark and Mulvey, JJ., concur.
1
Given that the verified petition did not raise the issue
of substantial evidence, petitioner's challenge in his brief to
the sufficiency of the evidence supporting the finding of guilt
of refusing a direct order is not properly before us (see Matter
of Kalwasinski v Bezio, 83 AD3d 1313, 1314 [2011]).
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ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court