IN RE: Wesley VAUGHN

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

IN RE: Wesley VAUGHN, Petitioner, v. Donald SELSKY, as Director of Special Housing/Inmate Disciplinary Programs, Respondent.

Decided: October 26, 2000

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ. Wesley Vaughn, Marcy, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After a cube search prompted by confidential information revealed a single-edge razor blade secured inside petitioner's locker, petitioner was charged with violating the prison disciplinary rule that prohibits inmates from possessing a weapon.   Found guilty as charged following a disciplinary hearing, petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of his guilt.   The matter was subsequently transferred to this Court and we confirm.

 Preliminarily, we note that this proceeding was improperly transferred inasmuch as petitioner raises solely procedural issues in the petition and does not challenge the determination on substantial evidence grounds (see, Matter of Madison v. Goord, 273 A.D.2d 557, n, 709 N.Y.S.2d 663, 664 n. 1;  Matter of Freeman v. Selsky, 270 A.D.2d 547 n. 1, 705 N.Y.S.2d 87).   Nonetheless, we shall retain jurisdiction and review the merits in the interest of judicial economy (see, Matter of Nieves v. Goord, 262 A.D.2d 1042, 693 N.Y.S.2d 361).

 We reject petitioner's contention that he was denied due process by virtue of the Hearing Officer's refusal to order a fingerprint analysis on the razor blade and to secure the testimony of a fingerprint expert.   The mere fact that another inmate's fingerprints may have been on the razor blade would not have defeated the inference of possession established at the hearing by the testimony of the correction officer who authored the misbehavior report and found the razor blade affixed to the interior wall of petitioners's locker, covered with masking tape colored to match the gray paint of the locker.   Therefore, the request was immaterial to petitioner's defense that the razor blade was planted by another inmate (see, Matter of Morris v. Selsky, 264 A.D.2d 925, 926, 694 N.Y.S.2d 821;  Matter of Mendez v. Jones, 176 A.D.2d 423, 574 N.Y.S.2d 412;  see also, Matter of Rodriguez-Aliseo v. Selsky, 268 A.D.2d 739, 702 N.Y.S.2d 668).

 Petitioner's remaining arguments are not preserved for our review by virtue of petitioner's failure to object at the disciplinary hearing (see, Matter of Kilgore v. Goord, 273 A.D.2d 695, 711 N.Y.S.2d 366;  Matter of De La Rosa v. Goord, 260 A.D.2d 824, 688 N.Y.S.2d 750).   In any event, were we to address them, we would not be persuaded that the Hearing Officer denied petitioner the right to call witnesses or considered information outside of the record by relying upon an investigative report authored by a correction officer who did not testify at the hearing.   Notably, the testimony petitioner sought to elicit from the correction officer was not relevant to the charge against him (see, Matter of Williams v. Goord, 270 A.D.2d 744, 745, 705 N.Y.S.2d 129) and the information contained in the investigative report was known to petitioner throughout the hearing (see, Matter of Cowart v. Coughlin, 193 A.D.2d 887, 888, 597 N.Y.S.2d 821).

Petitioner's remaining contentions are either unpreserved for our review or lacking in merit.

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

GRAFFEO, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.

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