                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521429
________________________________

In the Matter of ROBERT
   WILSON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey, JJ.

                             __________


     Robert Wilson, Romulus, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Ceresia Jr.,
J.), entered October 23, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.

      During the course of an investigation, correction officials
discovered that petitioner had utilized the prison telephone
system in a conspiracy to smuggle marihuana into the correctional
facility. The conspiracy involved having a correction officer
obtain the marihuana from petitioner's wife and bring it into the
facility. As a result, petitioner was charged in a misbehavior
report with smuggling, conspiring to possess drugs and violating
a facility telephone directive. He was found guilty of the
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charges following a tier III disciplinary hearing and the
determination was later affirmed on administrative appeal with a
modified penalty. Petitioner then commenced this CPLR article 78
proceeding challenging the determination and, following joinder
of issue, Supreme Court dismissed the petition. This appeal
ensued.

      Petitioner's primary contention is that he was improperly
denied the right to have the correction officer who was allegedly
part of the conspiracy testify at the hearing. The record
discloses that the Hearing Officer made a number of attempts to
contact this officer by telephone and, when the officer called
back during the confidential portion of the hearing, the officer
indicated that he would not testify. The Hearing Officer
thereafter advised petitioner that the officer was a suspended
employee who had refused to testify, and petitioner responded
"alright" and signed a witness refusal form. Significantly,
petitioner did not object to the officer's refusal to testify or
request that the Hearing Officer conduct a further inquiry into
such refusal at the hearing. In view of this, his claim has not
been preserved for our review (see Matter of Cooperider v
Annucci, 128 AD3d 1266, 1266 [2015]; Matter of Rafi v Venettozzi,
120 AD3d 1481, 1482 [2014]). Petitioner's remaining argument has
also not been preserved by appropriate objection.

      Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey, JJ.,
concur.
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ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
