Matter of Joseph v LaClair

Matter of Joseph v LaClair 2010 NY Slip Op 09436 [79 AD3d 1496] December 23, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of Nigel Joseph, Appellant, v Darwin LaClair, as Superintendent of Franklin Correctional Facility, Respondent.

—[*1] Nigel Joseph, Malone, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 19, 2010 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Following a tier II disciplinary hearing, petitioner was found guilty of being out of place and refusing a direct order as a result of being in the slop sink area after he was confined to his cell due to pending disciplinary charges. The determination was later affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination, which was dismissed by Supreme Court. Petitioner now appeals and we affirm.

Petitioner's sole claim on appeal—that the Hearing Officer erroneously failed to consider his mental health status in rendering the determination—was not preserved for our review, as it was not raised as a defense to the disciplinary charges (see Matter of Spirles v Goord, 308 AD2d 610, 611 [2003]). In fact, petitioner declined to call any witnesses or present any documentary evidence relative thereto. Moreover, inasmuch as petitioner failed to establish the relevance of his alleged mental health status, the Hearing Officer was not required to consider it (see id.). Therefore, Supreme Court properly dismissed the petition.

Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.