                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      519945
________________________________

In the Matter of JONATHAN
   RUSSO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   McCarthy, J.P., Garry, Rose and Devine, JJ.

                               __________


     Jonathan Russo, New York City, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 which found petitioner
guilty of violating certain prison disciplinary rules.

      Following a tier III disciplinary hearing, petitioner was
found guilty of assaulting staff, refusing a direct order,
violent conduct, interfering with an employee and refusing a
frisk procedure. According to the misbehavior report, petitioner
was ordered to assume a pat-frisk position on the wall and, when
a correction officer asked if he had something in his mouth,
petitioner turned and punched the correction officer in the face.
The determination of guilt was affirmed upon administrative
appeal and this CPLR article 78 proceeding ensued.
                              -2-                  519945

      We confirm. The detailed misbehavior report, together with
various reports and corroborating testimony from other correction
officers, provide substantial evidence to support the
determination of guilt (see Matter of Sital v Fischer, 73 AD3d
1348, 1348 [2010], lv denied 15 NY3d 707 [2010]). Petitioner's
remaining contentions, including that the Hearing Officer should
have assessed his mental health status, are raised for the first
time "and this Court 'ha[s] no discretionary authority or
interest of justice jurisdiction' to review unpreserved issues in
such special proceedings" (Matter of Reed v Artus, 39 AD3d 1056,
1057 [2007], quoting Matter of Khan v New York State Dept. of
Health, 96 NY2d 879, 880 [2001]).

     McCarthy, J.P., Garry, Rose and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
