                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   520869
________________________________

In the Matter of NOEL COOMBS
   JR.,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   October 21, 2016

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

                             __________


      Lebowitz Legal Services, PLLC, Glens Falls (Jack R.
Lebowitz of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.

                             __________


Lynch, J.

      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.

      While making his rounds late one evening in petitioner's
housing unit, a correction officer attempted to quell the noise
being made by a group of inmates and asked for their
identification cards, at which point one of the inmates became
unruly and refused to comply with the officer's directive. The
officer moved the inmate into the day room and called for
                              -2-                520869

assistance from two other correction officers. The inmate
refused to submit to a pat frisk and became combative, prompting
the three officers to use force in attempting to restrain him and
place him in mechanical restraints. Other inmates entered the
day room during this time, one of whom was petitioner, who
repeatedly grabbed one of the officers while he was attempting to
restrain the inmate. Unable to effectively restrain the inmate,
the officers released him, whereupon the remaining inmates,
including petitioner, surrounded the officers, taunted them and
refused several orders to return to their cubes. They also began
shouting phrases, including "Let's kill them," in an effort to
incite the other inmates. Ultimately, these inmates returned to
their cubes.

      As a result of this incident, petitioner was charged in a
misbehavior report with refusing a direct order, assaulting
staff, creating a disturbance, interfering with an employee,
engaging in violent conduct and engaging in a demonstration. He
was found guilty of the charges following a tier III disciplinary
hearing and the determination was later affirmed on
administrative appeal. Petitioner subsequently commenced this
CPLR article 78 proceeding challenging the determination.

      Initially, inasmuch as petitioner pleaded guilty to
creating a disturbance, he is precluded from challenging the
sufficiency of the evidence supporting that part of the
determination finding him guilty of this charge (see Matter of
Lewis v Fischer, 112 AD3d 1194, 1195 [2013]; Matter of Key v
Fischer, 72 AD3d 1365, 1366 [2010]). As for the remaining
charges, the detailed misbehavior report, testimony of the
correction officer who prepared it, supporting documentation and
confidential information considered by the Hearing Officer in
camera provide substantial evidence supporting the determination
finding petitioner guilty of these charges (see Matter of
Richardson v Annucci, 133 AD3d 966, 967 [2015]; Matter of Ballou
v New York State Dept. of Correctional Servs., 80 AD3d 1058,
1058-1059 [2011]). Although petitioner initially requested eight
inmates to testify at the hearing, he later abandoned this
request and asked for only four, thereby waiving any claim that
he was improperly denied witnesses (see Matter of Cornwall v
Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Brown v Barkley, 67
                              -3-                  520869

AD3d 1147, 1148 [2009], lv denied 14 NY3d 702 [2010]). Notably,
two of the remaining four inmates who he requested testified at
the hearing while two refused. Given petitioner's failure to
object at the hearing to the legitimacy of the inmates' refusals,
his claim that the Hearing Officer did not conduct a further
inquiry into the reasons for their refusals is not preserved for
our review (see Matter of Gomez v Cunningham, 137 AD3d 1432, 1433
[2016]; Matter of Rafi v Venettozzi, 120 AD3d 1481, 1482 [2014]).
In view of the foregoing, we find no reason to disturb the
determination of guilt.

     McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
