State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 517878 

________________________________

In the Matter of JESSIE J. 

BARNES,

Appellant,

v MEMORANDUM AND ORDER

D. VENETTOZZI, as Acting 

Director of Special Housing 

and Inmate Disciplinary 

Programs, et al.,

Respondents.

________________________________

Calendar Date: December 15, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Jessie J. Barnes, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondents.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Feldstein,

J.), entered October 21, 2013 in Franklin County, which, upon

reargument, adhered to its prior decision dismissing petitioner's

application, in a proceeding pursuant to CPLR article 78, to

review a determination of the Commissioner of Corrections and

Community Supervision finding petitioner guilty of violating

certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with

refusing a direct order, violent conduct, making threats,

assaulting staff and violating movement procedures following an
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incident that occurred on September 9, 2011 as his mechanical

restraints were being removed in his cell. At the tier III

disciplinary hearing, petitioner was twice removed for reasons of

institutional safety and security based upon disruptive behavior. 

At its conclusion, he was found guilty of the charges and a

restricted diet penalty was imposed. The determination was

upheld on administrative appeal. Petitioner thereafter commenced

this CPLR article 78 proceeding challenging that determination. 

Supreme Court dismissed the petition on the merits in a judgment

dated April 1, 2013, finding, among other things, that petitioner

had been properly removed from the hearing and that he had not

been denied the right to call witnesses. As is relevant here,

the court held that petitioner had failed to object when a

specified inmate was not called as a witness following that

inmate's refusal to testify, as documented in a witness refusal

form. Upon petitioner's motion for reargument, the court, after

granting reargument, adhered to its prior decision in a judgment

entered October 21, 2013. Petitioner now appeals.

To the extent that petitioner raises arguments on this

appeal addressed to Supreme Court's underlying judgment dated

April 1, 2013, he did not appeal from that judgment. Moreover,

petitioner's notice of appeal was not filed until October 30,

2013 and any appeal from that earlier judgment would have been

untimely (see CPLR 2103 [b] [2], [c]; 5513 [a], [d]; Matter of

Brooks v Connolly, 84 AD3d 1612, 1612 [2011]; Matter of Hanning v

McCoy, 4 AD3d 685, 686 [2004]).

With regard to the judgment entered October 21, 2013,

Supreme Court addressed and rejected the merits of petitioner's

reargument motion. Thus, we "deem the court to have granted

reargument and adhered to its prior decision" (Rodriguez v Jacoby

& Meyers, LLP, 126 AD3d 1183, 1184 [2015], lv denied 25 NY3d 912

[2015]), and the resulting judgment is appealable as of right

(see CPLR 5701 [a] [2] [viii]; Rodriguez v Jacoby, 126 AD3d at

1184-1185). Addressing the merits, we find that the court

properly adhered to its prior determination as it had not

overlooked or misapprehended anything when it held that, during

the course of the hearing, petitioner had failed to raise an

objection to the witness's refusal to testify or to the scope of

the inquiry into that refusal (see CPLR 2221 [d]). While
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petitioner's failure to preserve this claim may be attributable

to his removal from the hearing, which he did not challenge on

his reargument motion, this does not alter the conclusion that

the issue is unpreserved, and there is "no discretionary

authority or interest of justice jurisdiction" in proceedings to

review administrative determinations pursuant to CPLR article 78

(Matter of Khan v New York State Dept. of Health, 96 NY2d 879,

880 [2001]; accord Matter of Russo v Annucci, 130 AD3d 1124,

1124-1125 [2015]). To the extent that the motion is styled as

one to renew based upon an unsworn affidavit from the inmate in

question, it was properly denied as the submission would not

change the prior determination that petitioner failed to object

on this point (see CPLR 2221 [e] [2]; Hyman v Schwartz, 127 AD3d

1281, 1285 [2015]). Petitioner's remaining claims are either

unpreserved for our review or lack merit. 

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.

ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court