IN RE: Rodney FREEMAN

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

IN RE: Rodney FREEMAN, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: September 25, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and MALONE JR., JJ. Rodney Freeman, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 certain prison disciplinary rules.

 Petitioner challenges a determination finding him guilty of committing an unhygienic act and disobeying a direct order for an incident in which he was observed urinating on his cell door.   We confirm.   The misbehavior report and petitioner's own admission that he was, indeed, urinating in his cell provide substantial evidence to support the determination of guilt (see Matter of Kearney v. Fischer, 51 A.D.3d 1185, 1185-1186, 856 N.Y.S.2d 740 [2008];  Matter of Harrison v. Bertone, 50 A.D.3d 1352, 1353, 855 N.Y.S.2d 759 [2008] ).   Contrary to petitioner's suggestion that he was denied his right to call a witness, the Hearing Officer did not err by adhering to the accepted policy of the Office of Mental Hygiene and taking confidential testimony regarding the state of petitioner's mental health (see Matter of Lamage v. Selsky, 47 A.D.3d 1144, 1145, 850 N.Y.S.2d 684 [2008];  Matter of Farrell v. Selsky, 32 A.D.3d 1103, 1104, 821 N.Y.S.2d 298 [2006] ).   Finally, we find that although petitioner preserved his claim that the proceeding against him was not timely commenced by raising it on his administrative appeal (see Matter of Finley v. Goord, 47 A.D.3d 995, 996, 848 N.Y.S.2d 783 [2008];  Matter of Bates v. Coughlin, 145 A.D.2d 854, 854, 535 N.Y.S.2d 838 [1988], lv. denied 74 N.Y.2d 602, 541 N.Y.S.2d 985, 539 N.E.2d 1113 [1989] ), it lacks support in the record, which suggests that petitioner was not placed in prehearing confinement prior to the commencement of the hearing (see 7 NYCRR 251-5.1 [a] ).   Petitioner's remaining claims, to the extent not specifically addressed herein, have been examined and found to be unavailing.

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

SPAIN, J.

CARDONA, P.J., MERCURE, LAHTINEN and MALONE JR., JJ., concur.

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