Matter of Magin v Leclaire

Matter of Magin v Leclaire 2008 NY Slip Op 02714 [49 AD3d 1108] March 27, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

In the Matter of Eric A. Magin, Appellant, v Lucien J. Leclaire, Jr., as Commissioner of Correctional Services, Respondent.

—[*1] Eric A. Magin, Altona, appellant pro se.

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

Appeal from a judgment of the Supreme Court (Zwack, J.), entered May 15, 2007 in Albany 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.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent which found him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the petition and petitioner now appeals.

Petitioner's sole contention on appeal is that the misbehavior report was reviewed by a correction sergeant who was not properly authorized to act as a review officer and, as a result, the misbehavior report is invalid.[FN*] This claim is not properly preserved for our review as petitioner [*2]did not make an objection to the sergeant's authorization at the hearing (see Matter of Carter v Goord, 45 AD3d 1077, 1078 [2007]; Matter of Hernandez v Goord, 37 AD3d 893, 894 [2007]; see also Matter of Roman v Goord, 11 AD3d 858, 859 [2004]). In any event, although the facility superintendent is directed to designate as a review officer a staff member of the rank of lieutenant or higher, we perceive no impropriety in the designation here inasmuch as it is within the superintendent's discretion to designate "some other employee" (7 NYCRR 251-2.1; see Matter of Wright v Goord, 19 AD3d 855 [2005], lv denied 5 NY3d 711 [2005]).

Peters, J.P., Spain, Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs. Footnotes

Footnote *: Although petitioner raised other issues in his petition, which were addressed and dismissed by Supreme Court, he abandoned these claims by not raising them in his brief (see Matter of Coleman v Goord, 39 AD3d 1048, 1048 n [2007]).