Gibson v. Fischer

Appeal from a judgment of the Supreme Court (O’Connor, J.), entered December 4, 2007 in Albany 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.

Petitioner, a prison inmate, was charged in a misbehavior report with creating a disturbance, assaulting staff and refusing a direct order. Following a tier III hearing, he was found guilty of all charges. On administrative appeal, the determination was upheld, although the penalty was modified. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Initially, as petitioner’s claim that the Hearing Officer relied on evidence outside the record for the determination of guilt was not timely raised on administrative appeal, the issue is not properly before us (see Matter of Constantino v Goord, 33 AD3d 1093, 1094 [2006]; Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]). Furthermore, petitioner’s contention that the determination of guilt was not supported by the requisite substantial evidence is unpreserved for our review inasmuch as it is raised for the first time on this appeal (see Matter of Williams v Goord, 47 AD3d 1170, 1171 [2008]). In any event, the detailed misbehavior report, related documentary evidence and the hearing testimony support the determination of guilt (see *917Matter of Green v Goord, 26 AD3d 562, 563 [2006]). Finally, contrary to petitioner’s contention, he was properly excluded from the hearing during a mental health professional’s confidential health assessment testimony (see 7 NYCRR 254.6 [c] [3]; Matter of Lamage v Selsky, 47 AD3d 1144, 1145 [2008]).

Cardona, EJ., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.