                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 17, 2016                     519368
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In the Matter of JAVIER GOMEZ,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

ROBERT CUNNINGHAM, as
   Superintendent of Woodbourne
   Correctional Facility,
                    Respondent.
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Calendar Date:    February 17, 2016

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

                              __________


      Law Offices of Paul F. Dwyer, Loudonville (Colin Dwyer of
counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for respondent.

                              __________


Rose, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged in a misbehavior
report with creating a disturbance, refusing a direct order,
harassment and possessing property in an unauthorized area.
Following a tier III disciplinary hearing, petitioner was found
not guilty of harassment, but guilty of the remaining charges.
The determination was affirmed on administrative appeal and this
                              -2-                  519368

CPLR article 78 proceeding ensued.

      Initially, respondent concedes, and we agree, that
substantial evidence does not support the charge of refusing a
direct order. Accordingly, we annul that part of the
determination, but need not remit the matter for a
redetermination of the penalty because the penalty has been
completed and no loss of good time was imposed (see Matter of
Hobson v Prack, 127 AD3d 1370, 1371 [2015]). Inasmuch as
petitioner has limited his brief by challenging only the charge
of refusing a direct order, he has abandoned any challenge to the
finding of guilt with respect to creating a disturbance and
possessing property in an unauthorized area (see Matter of Carter
v Fischer, 117 AD3d 1262, 1262 [2014]; Matter of Staine v
Fischer, 111 AD3d 999, 999 [2013]). Finally, petitioner claims
that he was denied the right to call certain witnesses who had
never agreed to testify and had executed witness refusal forms.
This argument is unpreserved for our review, however, in light of
his failure to object or request that the Hearing Officer make
further inquiry (see Matter of Geraci v Annucci, 131 AD3d 767,
768 [2015]; Matter of Rafi v Venettozzi, 120 AD3d 1481, 1482
[2014]).

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



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
refusing a direct order; petition granted to that extent and the
Commissioner of Corrections and Community Supervision is directed
to expunge all references to this charge from petitioner's
institutional record; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
