                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522432
________________________________

In the Matter of ANTHONY
   TORRES,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

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


Calendar Date:   September 20, 2016

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

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for appellant.

     Anthony Torres, Stormville, respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Ferreira, J.),
entered March 10, 2015 in Albany County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78, to annul a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
engaging in lewd conduct, refusing a direct order and harassment
of an employee. Prior to the commencement of the hearing,
petitioner's employee assistant reported back to petitioner that
two inmate witnesses that petitioner requested refused to
                              -2-                522432

testify. Following the disciplinary hearing, petitioner was
found guilty of all charges and that determination was affirmed
upon administrative review. Petitioner commenced this CPLR
article 78 proceeding, claiming that the Hearing Officer made no
meaningful effort to contact the two witnesses who refused to
testify and did not provide him with witness refusal forms.
Respondent answered and contended that petitioner failed to
preserve the issue because he failed to raise it at the hearing.
Supreme Court, finding that the issue was preserved because it
was raised upon administrative appeal, ruled that petitioner was
denied his constitutional right to call witnesses, granted the
petition and annulled the determination. Respondent appeals.

      We reverse. At the commencement of the hearing, the
Hearing Officer reviewed the results of petitioner's employee
assistance, including the fact that the two inmate witnesses
refused to testify. At no point during the hearing did
petitioner request that the two inmates be interviewed or that
the Hearing Officer ascertain the reason for their refusal to
testify and made no objections with regard to any requested
witnesses. Under these circumstances, petitioner "acquiesced in
the refusal of the [two] witnesses to testify [and, a]s a result,
petitioner waived any objections as to how the Hearing Officer
handled the situation by failing to mention the error at a time
when it could have been corrected" (Matter of Crowley v O'Keefe,
148 AD2d 816, 817 [1989], appeal dismissed 74 NY2d 780 [1989], lv
denied 74 NY2d 613 [1989]; see Matter of Henry v Fischer, 120
AD3d 868, 869 [2014], lv granted 24 NY3d 908 [2014]; Matter of
Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of Ryan v Goord,
12 AD3d 799, 800 [2004]; Matter of Pabon v Goord, 6 AD3d 833, 834
[2004]; Matter of Graham v New York State Dept. of Correctional
Servs., 178 AD2d 870, 870 [1991], lv denied 79 NY2d 756 [1992]).
To the extent that petitioner's remaining contentions have been
preserved for our review, we find no indication that the Hearing
Officer was biased, that the hearing was conducted in an unfair
manner or that the determination flowed from any alleged bias
(see Matter of Lopez v Dept. of Corr. & Community Supervision,
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142 AD3d 1238, 1240 [2016]; Matter of Ellison v Fischer, 63 AD3d
1382, 1383 [2009]).

      Peters, P.J., McCarthy, Garry, Egan Jr. and Rose, JJ.,
concur.




      ORDERED that the judgment is reversed, on the law, without
costs, determination confirmed and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
