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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Derrick HAMILTON, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: August 10, 2006

Before:  MERCURE, J.P., SPAIN, CARPINELLO, MUGGLIN and KANE, JJ. Derrick Hamilton, Wallkill, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 a prison disciplinary rule.

Petitioner was charged with violating a prison disciplinary rule prohibiting inmates from using controlled substances unless prescribed by health services providers, after a sample of his urine twice tested positive for cannabinoids.   Following a tier III disciplinary hearing held in his absence, petitioner was found guilty of the charge.   On administrative appeal, respondent modified the penalty and otherwise upheld the determination.   Petitioner thereafter commenced this proceeding challenging the determination.1

 We find that petitioner knowingly waived his right to be present at the hearing when he refused to attend despite being afforded the opportunity, and having been fully informed by the Hearing Officer both that any concerns would be addressed at the hearing and regarding the consequences of his refusal (see People v. Ahmed, 66 N.Y.2d 307, 311, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985], citing Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 [1938];  Matter of Johnson v. Racette, 282 A.D.2d 899, 899-900, 723 N.Y.S.2d 414 [2001];  Matter of Joyce v. Goord, 246 A.D.2d 926, 927, 667 N.Y.S.2d 833 [1998] ).   Petitioner also failed to preserve the claims that he now advances which should have been raised at the hearing (see CPL 470.05[2] ).  “Unpreserved issues are not issues of law” subject to our judicial review in a CPLR article 78 proceeding (Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001];  see Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2000] ), as “the Appellate Division ha[s] no discretionary authority or interest of justice jurisdiction” (Matter of Khan v. New York State Dept. of Health, supra ) to review unpreserved issues in such special proceedings.   Accordingly, we will not review petitioner's claims.

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


1.   Although it does not appear that petitioner raised a question of substantial evidence and, therefore, the proceeding should not have been transferred to this Court, we nevertheless retain jurisdiction in the interest of judicial economy (see Matter of Otero v. Goord, 17 A.D.3d 805, 806 n., 792 N.Y.S.2d 728 [2005] ).

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