Matter of Olibencia v New York State Dept. of Corrections & Community Supervision

Matter of Olibencia v New York State Dept. of Corrections & Community Supervision 2015 NY Slip Op 06855 Decided on September 17, 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: September 17, 2015
520389

[*1]In the Matter of GILBERTO OLIBENCIA, Appellant,

v

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: August 10, 2015
Before: Peters, P.J., McCarthy, Lynch and Devine, JJ.

Gilberto Olibencia, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Ceresia, J.), entered January 8, 2015 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 a prison disciplinary rule.

Petitioner was charged in a misbehavior report with possession of a weapon after a search of his cell uncovered a shank secured inside his cell locker with masking tape that was the same color as the cell locker. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal. Supreme Court dismissed petitioner's subsequent CPLR article 78

proceeding and this appeal ensued.

We affirm. Petitioner contends that he was improperly denied documentary evidence regarding when the cell was last painted and how many times it had been searched since then. However, petitioner waived his objection to present documentary evidence when, after the Hearing Officer asked him if there were any procedural objections, he responded in the negative (see Matter of Fulmore v Prack, 116 AD3d 1281, 1282 [2014]; Matter of Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19 NY3d 802 [2012]). In any event, petitioner's contention is without merit as the record reflects that the requested documents do not exist (see Matter of Wilson v Annucci, 129 AD3d 1422, 1422 [2015]; Matter of Mendez v Annucci, 126 AD3d 1216, 1217 [2015]).

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.