Matter of Thomas v. Martuscello
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Bureau Thomas J.K. Smith, State Reporter
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Matter of Thomas v Martuscello
2026 NY Slip Op 02528
April 24, 2026
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
IN THE MATTER OF LEON THOMAS, PETITIONER,
v
DANIEL F. MARTUSCELLO, III, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on April 24, 2026
165 TP 25-01499
Present: Bannister, J.P., Montour, Greenwood, Nowak, And Hannah, JJ.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Donald G. O'Geen, A.J.], entered August 27, 2025) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various incarcerated individual rules.
[*1]It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier III hearing, that he violated several incarcerated individual rules. To the extent that petitioner contends that the determination finding that he violated incarcerated individual rules 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]) and 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing a direct order]) is not supported by substantial evidence, we note that "his plea of guilty to those violations precludes our review of his contention" (Matter of Caballero v Annucci, 187 AD3d 1671, 1672 [4th Dept 2020]; see Matter of Ingram v Annucci, 151 AD3d 1778, 1778 [4th Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of Williams v Annucci, 133 AD3d 1362, 1363 [4th Dept 2015]). We have reviewed petitioner's remaining contention and conclude that it does not require a different result.
Entered: April 24, 2026
Ann Dillon Flynn
Clerk of the Court
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