State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 521587 

________________________________

In the Matter of JAMES DAVIS,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: May 3, 2016

Before: Peters, P.J., McCarthy, Garry, Rose and Clark, JJ.

__________

James Davis, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen

Treasure of counsel), for respondent.

__________

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 finding petitioner guilty of

violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with

possessing a weapon, possessing a controlled substance,

possessing an intoxicant and possessing an unauthorized

medication. Following a tier III disciplinary hearing, he was

found guilty as charged. Upon administrative review, the guilty

determinations regarding the charges of possessing a controlled

substance and possessing an intoxicant were reversed, with no

change in the penalty. Petitioner thereafter commenced this CPLR

article 78 proceeding.
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Initially, inasmuch as petitioner did not address in his

brief the issue as to whether the finding of guilt with respect

to the charge of possessing a weapon was supported by substantial

evidence, that issue is abandoned (see Matter of Carter v

Annucci, 117 AD3d 1262, 1262 [2014]; Matter of Staine v Fischer,

111 AD3d 999, 999 [2013]). With respect to the charge of

possessing an unauthorized medication, respondent concedes, and

we agree, that substantial evidence does not support that charge. 

Accordingly, we annul that part of the determination. Given that

the penalty imposed included a loss of good time, the matter must

be remitted for a redetermination of the penalty. 

As to his procedural contentions, petitioner argues that he

was denied the right to call certain witnesses he had listed on

his employee assistance form. Although petitioner identified two

inmates as potential witnesses on the form, he did not request

these witnesses at the hearing or raise an objection to the lack

of their testimony. Accordingly, this issue is not preserved

(see Matter of Frazier v Artus, 40 AD3d 1288, 1288 [2007]; Matter

of Colon v Goord, 11 AD3d 839, 840 [2004]). Similarly,

petitioner's claim that he was denied a copy of Department of

Corrections and Community Supervision Directive No. 4004 is also

unpreserved, as he did not request a copy or raise an objection

during the hearing (see Matter of Kalwasinski v Fischer, 87 AD3d

1207, 1208 [2011]; Matter of Colon v Goord, 11 AD3d at 840). 

Petitioner's remaining claims are either unpreserved or without

merit. 

Peters, P.J., McCarthy, Garry, Rose and Clark, JJ., concur.
-3- 521587 

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

possessing an unauthorized medication and imposed a penalty;

petition granted to that extent, respondent is directed to

expunge all references to this charge from petitioner's

institutional record and matter remitted to respondent for an

administrative redetermination of the penalty on the remaining

violation; and, as so modified, confirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court