                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521747
________________________________

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


Calendar Date:   February 23, 2016

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                             __________


     Hector Lopez, Fallsburg, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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 the Superintendent of Sullivan
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
fighting, engaging in violent conduct, refusing a direct order
and destroying state property after allegedly engaging in a
physical altercation with a fellow inmate. Petitioner executed a
waiver of his right to attend the tier II hearing. The hearing
proceeded in his absence, at the conclusion of which petitioner
was found guilty of all charges. Following an unsuccessful
administrative appeal, petitioner commenced this CPLR article 78
proceeding.
                              -2-                  521747

      Initially, although there are gaps in the hearing
transcript, meaningful review is not precluded (see Matter of
Pilet v Annucci, 128 AD3d 1198, 1199 [2015]). To that end, the
misbehavior report and testimony from its author who witnessed
the fracas provide substantial evidence to support the
determination of guilt (see Matter of Ramos v Venettozzi, 131
AD3d 1309, 1310 [2015], lv denied 26 NY3d 913 [2015]; Matter of
McLeod v Fischer, 122 AD3d 1037, 1037-1038 [2014]). Petitioner's
contention that the hearing was improperly held in his absence
given the Hearing Officer's failure to ascertain the basis for
petitioner's execution of a waiver of appearance is not properly
before this Court, as petitioner failed to preserve such issue by
raising it in his administrative appeal (see Matter of Hamilton v
Goord, 32 AD3d 642, 643 [2006], lv denied 7 NY3d 715 [2006];
Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]).
Furthermore, petitioner's procedural challenges to the hearing
are unpreserved due to his failure to attend the hearing (see
Matter of Douglas v Bedard, 134 AD3d 1317, 1318 [2015]; Matter of
Kalwasinski v Prack, 122 AD3d 990, 991 [2014]).

     Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
