Appellate Division of the Supreme Court of New York, Third DepartmentFeb 7, 2008
48 A.D.3d 848 (N.Y. App. Div. 2008)
48 A.D.3d 848850 N.Y.S.2d 3012008 N.Y. Slip Op. 1045

No. 502617.

February 7, 2008.

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered March 28, 2007 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Deli Sinanaj, Marcy, appellant pro se.

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

Before: Carpinello, J.P., Lahtinen, Kane, Malone Jr. and Kavanagh, JJ.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination which found him guilty of engaging in violent conduct, possessing a weapon and refusing frisk procedures. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Initially, petitioner's contention that the determination of guilt is not supported by the requisite substantial evidence is unpreserved for our review inasmuch as it is being raised for the first time on this appeal ( see Matter of Woodward v Selsky, 43 AD3d 1209, 1209). Regarding petitioner's allegation that the Hearing Officer lacked impartiality, such a claim is unsubstantiated and, in any event, there is no indication that the determination flowed from any alleged bias ( see Matter of Nieves v Goord, 39 AD3d 1104, 1105). As for petitioner's remaining assertions that he was deprived of adequate employee assistance and denied both relevant documentary evidence and the right to present witness testimony, we have reviewed the record and find these claims to be unavailing.

Ordered that the judgment is affirmed, without costs.