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IN RE: MELVIN MOORE, PETITIONER–APPELLANT, v. BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT–RESPONDENT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner, an inmate at Attica Correctional Facility, commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated inmate rules 102.10 (7 NYCRR 270.2[B][3][i] ) and 104.11 (7 NYCRR 270.2[B][5][ii] ) by threatening another inmate with violence. Petitioner failed to preserve for our review his contention that the hearing officer engaged in an off-the-record conversation with a witness for respondent (see Matter of Jones v. Fischer, 111 AD3d 1362, 1363; Matter of Martinez v. Johnson, 255 A.D.2d 967, 967). In any event, petitioner has not established that any such off-the-record conversation took place. Petitioner also failed to preserve his further contention that the hearing officer deprived him of his right to call witnesses at the disciplinary hearing, and we note, moreover, that petitioner did not exhaust his administrative remedies with respect to that contention (see Peek v. Dennison, 39 AD3d 1239, 1240, appeal dismissed 9 NY3d 860). In any event, that contention is belied by the record. Finally, we note that petitioner has abandoned his contention, raised in the petition, that the determination is not supported by substantial evidence (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984).
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 13–01044
Decided: July 11, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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