Matter of Daum v Prack

Matter of Daum v Prack 2015 NY Slip Op 05527 Decided on June 25, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 25, 2015
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[*1]In the Matter of TERRY DAUM, Appellant,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: May 5, 2015
Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.

Terry Daum, Pine City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the Supreme Court (Lynch, J.), entered July 10, 2013 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules, and (2) from a judgment of said court (Platkin, J.), entered July 30, 2014 in Albany County, which, upon renewal, adhered to the prior decision.

While a correction officer was making his security rounds, petitioner addressed him in a disrespectful manner and made sexually suggestive comments. Petitioner then exposed his genitals and ignored the officer's directives to cease engaging in such conduct. As a result, he was charged in a misbehavior

report with creating a disturbance, engaging in lewd conduct, refusing a direct order, interfering with an employee and harassment. He was found guilty of the charges following a tier III disciplinary hearing. The determination was later modified on administrative appeal and the charge of interfering with an employee was dismissed. Petitioner then commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court (Lynch, J.) dismissed the petition. Petitioner's subsequent motion to renew was granted and, upon renewal, Supreme Court (Platkin, J.) adhered to the prior decision. Petitioner now appeals.

Petitioner contends, among other things, that the Hearing Officer failed to undertake an assessment of his mental health in accordance with the procedures set forth in 7 NYCRR 254.6. The record, however, does not reveal that petitioner put his mental state "at issue" at the hearing, as is necessary to trigger the regulatory requirements (7 NYCRR 254.6 [b] [1]; see Matter of Matthews v Fischer, 109 AD3d 1038 [2013]; Matter of McIver v Goord, 37 AD3d 943, 945 [2007]; Matter of Tafari v Selsky, 32 AD3d 1055, 1056 [2006], lv denied 7 NY3d 717 [2006]). For this reason, we find no merit to his further claim that he was improperly denied his mental [*2]health therapist as a witness. We have considered petitioner's remaining contentions and find them either unpreserved for our review or lacking in merit.

Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.

ORDERED that the judgments are affirmed, without costs.