IN RE: Eric POLITE (2008)

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 which found petitioner guilty of violating certain prison disciplinary rules.

 Following a tier III disciplinary hearing, petitioner was found guilty of making threats, being out of place, leaving an assigned area and violating the movement regulations.   Respondent modified the determination upon administrative appeal by dismissing the threats charge, but otherwise affirmed the determination and did not reduce the penalty imposed.   This CPLR article 78 proceeding ensued.¹

 Petitioner contends that he was denied adequate employee assistance and that he was improperly denied the right to call certain witnesses.   However, the only objections petitioner made at the hearing were with respect to the denial of witnesses he requested to testify regarding the incident leading to the threats charge.   Likewise, petitioner's claim of inadequate assistance is directed solely to the assistance as it pertained to the threats charge.   Inasmuch as that charge was dismissed upon administrative appeal, petitioner's claims with respect to such are moot (see Matter of May v. Selsky, 291 A.D.2d 591, 592, 736 N.Y.S.2d 918 [2002] ).   Moreover, because petitioner did not object at the hearing to the alleged denial of his witnesses with respect to the remaining charges, this claim is not preserved for our review (see Matter of Tafari v. Brown, 47 A.D.3d 979, 979-80, 849 N.Y.S.2d 327, 328 [2008];  Matter of Carter v. Goord, 45 A.D.3d 1077, 1078, 846 N.Y.S.2d 411 [2007] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

FOOTNOTES

1.   Although petitioner arguably raised the issue of substantial evidence in the petition and, therefore, the proceeding was properly transferred to this Court, he has since abandoned this claim by not raising it in his brief (see Matter of Coleman v. Goord, 39 A.D.3d 1048, 1048 n., 834 N.Y.S.2d 368 [2007] ).