                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     518830
________________________________

In the Matter of TERRY DAUM,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

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

                               __________


     Terry Daum, Pine City, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                               __________


      Appeals (1) from a judgment of the Supreme Court (Lynch,
J.), entered July 10, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of the Commissioner of
Corrections and Community Supervision finding petitioner guilty
of violating certain prison disciplinary rules, and (2) from a
judgment of said court (Platkin, J.), entered July 30, 2014 in
Albany County, which, upon renewal, adhered to the prior
decision.

      While a correction officer was making his security rounds,
petitioner addressed him in a disrespectful manner and made
sexually suggestive comments. Petitioner then exposed his
genitals and ignored the officer's directives to cease engaging
in such conduct. As a result, he was charged in a misbehavior
                              -2-                  518830

report with creating a disturbance, engaging in lewd conduct,
refusing a direct order, interfering with an employee and
harassment. He was found guilty of the charges following a tier
III disciplinary hearing. The determination was later modified
on administrative appeal and the charge of interfering with an
employee was dismissed. Petitioner then commenced this CPLR
article 78 proceeding. Following joinder of issue, Supreme Court
(Lynch, J.) dismissed the petition. Petitioner's subsequent
motion to renew was granted and, upon renewal, Supreme Court
(Platkin, J.) adhered to the prior decision. Petitioner now
appeals.

      Petitioner contends, among other things, that the Hearing
Officer failed to undertake an assessment of his mental health in
accordance with the procedures set forth in 7 NYCRR 254.6. The
record, however, does not reveal that petitioner put his mental
state "at issue" at the hearing, as is necessary to trigger the
regulatory requirements (7 NYCRR 254.6 [b] [1]; see Matter of
Matthews v Fischer, 109 AD3d 1038 [2013]; Matter of McIver v
Goord, 37 AD3d 943, 945 [2007]; Matter of Tafari v Selsky, 32
AD3d 1055, 1056 [2006], lv denied 7 NY3d 717 [2006]). For this
reason, we find no merit to his further claim that he was
improperly denied his mental health therapist as a witness. We
have considered petitioner's remaining contentions and find them
either unpreserved for our review or lacking in merit.

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



     ORDERED that the judgments are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
