Kalid v. Farrell

284 A.D.2d 603, 725 N.Y.S.2d 583, 2001 N.Y. App. Div. LEXIS 6034

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2001
• Status: Published

Opinion

—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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rules prohibiting assault, fighting and creating a disturbance. Initially, inasmuch as he pleaded guilty to the charge of fighting, petitioner is precluded from challenging the sufficiency of the evidence supporting the determination of guilt in connection therewith (see, Matter of Rollerson v Selsky, 281 AD2d 735). Notwithstanding petitioner’s contrary argument, we find that the misbehavior report, together with the evidence adduced at the hearing, constitute substantial evidence to support the determination of guilt on the remaining charges (see, Matter of Lunney v Selsky, 275 AD2d 820; Matter of Washington v Selsky, 271 AD2d 798). Likewise, we are unpersuaded that the gaps in the transcription of the hearing tape were so significant as to preclude meaningful review (see, Matter of Gonzalez v New York State Dept. of Correctional Servs., 277 AD2d 539). Petitioner’s remaining arguments are unpreserved for our review (see, Matter of Kross v Goord, 278 AD2d 637) and, in any event, are without merit.

Her cure, J. P., Crew III, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.