Opinion
No. 99463.
February 8, 2007.
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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Leroy Williams, Comstock, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondents.
Before: Cardona, P.J., Peters, Spain, Mugglin and Rose, JJ.
Petitioner was charged in a misbehavior report with soliciting sexual acts and harassing an employee after an investigation revealed that he sent anonymous letters of a sexual nature to a female employee. He was found guilty of the charges following a tier III disciplinary hearing. The determination was affirmed on administrative appeal with a modified penalty consisting of 15 months in the special housing unit, and loss of packages, commissary and telephone privileges for the same amount of time, as well as 24 months loss of good time. Petitioner commenced this CPLR article 78 proceeding challenging the determination.
Because the petition did not raise a question of substantial evidence, the proceeding was improperly transferred to this Court; nevertheless, we retain jurisdiction and review the merits in the interest of judicial economy ( see Matter of Cargill v Goord, 29 AD3d 1255, 1256 n [2006]).
Contrary to petitioner's claim, there are no deficiencies in the hearing transcript which prevent meaningful judicial review ( see Matter of Daniels v Goord, 31 AD3d 1076). Moreover, petitioner is precluded from asserting his procedural claims due to his failure to raise them at the hearing ( see Matter of Huggins v Goord, 19 AD3d 989, 989). Likewise, petitioner's First Amendment claim premised upon the confiscation of his written materials from his cell was not raised at the hearing and, as such, is unpreserved and may not be raised for the first time in this CPLR article 78 proceeding ( see Matter of Hamilton v Goord, 32 AD3d 642, 643, lv denied 7 NY3d 715). Finally, given the seriousness of the disciplinary violations, we do not find that the modified penalty is so shocking to one's sense of fairness as to be excessive ( see Matter of Long v Goord, 32 AD3d 1121, 1122).
Adjudged that the determination is confirmed, without costs, and petition dismissed.