IN RE: Elijah WEATHERSBY

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

IN RE: Elijah WEATHERSBY, Petitioner, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: January 28, 1999

Before:  CARDONA, P.J., MIKOLL, CREW III, SPAIN and CARPINELLO, JJ. Elijah Weathersby, Dannemora, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

 Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules which prohibit inmates from being out of place and stealing or wasting State property.   These charges were filed after the head cook of the correctional facility reported that petitioner, a porter, had taken a styrofoam tray belonging to the facility and was cooking food in the diet area of the kitchen without permission.   Contrary to petitioner's contention, we find that the misbehavior report and the testimony of the head cook provide substantial evidence of petitioner's guilt (see, Matter of Garrastequi v. Goord, 252 A.D.2d 638, 675 N.Y.S.2d 196).   Next, inasmuch as petitioner failed to object to the sufficiency of the misbehavior report at the hearing or on administrative appeal, such claims have not been preserved for our review (see, Matter of Plummer v. Barkley, 247 A.D.2d 714, 669 N.Y.S.2d 251).   In any event, petitioner's contention that the misbehavior report failed to provide him with adequate notice of the disciplinary charges against him is rejected as meritless (see, Matter of Dumpson v. Goord, 253 A.D.2d 991, 679 N.Y.S.2d 718).

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

MEMORANDUM DECISION.

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