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Melendez v. Coombe

233 A.D.2d 630 Court N.Y. App. Div. Decision date 1996-11-14 English

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p. 630
In the Matter of Michael Melendez, Petitioner, v Philip Coombe, Jr., as Commissioner of the New York State Department of Correctional Services, Respondent.
[649 NYS2d 841]

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating a prison disciplinary rule which prohibits the possession of a weapon, in this instance, a razor with a taped handle. He subsequently commenced this CPLR article 78 proceeding, contending that no documentary evidence was presented against him at the disciplinary hearing. Petitioner failed to raise this claim at the tier III hearing with the result that it has not been preserved for our review (see, Matter of Shaffer v Leonardo, 179 AD2d

p. 631
980 , lv denied 79 NY2d 758 ). Petitioner also contends that the hearing transcript is incomplete in that certain statements made by petitioner at the hearing were not transcribed, having been noted as "unintelligible”. When read in context, however, it is apparent that these untranscribed statements were not relevant to the issue of whether petitioner was guilty of the charged misconduct and they do not preclude meaningful review of the proceedings (see, Matter of Crandall v Coughlin, 219 AD2d 823 ; Matter of Fletcher v Selsky, 199 AD2d 865 , 866, lv denied 83 NY2d 753 ). We accordingly confirm.

Mikoll, J. P., Mercure, White, Casey and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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