                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520389
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In the Matter of GILBERTO
   OLIBENCIA,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION,
                    Respondent.
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Calendar Date:   August 10, 2015

Before:   Peters, P.J., McCarthy, Lynch and Devine, JJ.

                             __________


     Gilberto Olibencia, Wallkill, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Ceresia, J.),
entered January 8, 2015 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 a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
possession of a weapon after a search of his cell uncovered a
shank secured inside his cell locker with masking tape that was
the same color as the cell locker. Following a tier III
disciplinary hearing, petitioner was found guilty and that
determination was affirmed upon administrative appeal. Supreme
Court dismissed petitioner's subsequent CPLR article 78
                              -2-                  520389

proceeding and this appeal ensued.

      We affirm. Petitioner contends that he was improperly
denied documentary evidence regarding when the cell was last
painted and how many times it had been searched since then.
However, petitioner waived his objection to present documentary
evidence when, after the Hearing Officer asked him if there were
any procedural objections, he responded in the negative (see
Matter of Fulmore v Prack, 116 AD3d 1281, 1282 [2014]; Matter of
Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19 NY3d 802
[2012]). In any event, petitioner's contention is without merit
as the record reflects that the requested documents do not exist
(see Matter of Wilson v Annucci, 129 AD3d 1422, 1422 [2015];
Matter of Mendez v Annucci, 126 AD3d 1216, 1217 [2015]).

     Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
