Davis v. Richardson

Determination unanimously confirmed and petition dismissed. Memorandum: Petitioner did not raise any issue regarding the adequacy of prehearing assistance or denial of his right to call witnesses on his administrative appeal, and thus, those issues were not preserved for judicial review (see, Matter of Cushing-Gale v Kelly, 155 AD2d 996; Matter of Samuels v Kelly, 143 AD2d 506, lv *977denied 73 NY2d 707). In any event, the record does not support petitioner’s contentions on either issue. The Hearing Officer’s determination that petitioner violated inmate rule 109.10 (being out of place) was supported by substantial evidence. Petitioner testified at the hearing that he was at the entrance to another inmate’s "cube” at 2:30 a.m. and that an altercation ensued within the inmate’s "cube”. (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.