Sullivan v. Fischer

95 A.D.3d 1514, 944 N.Y.S.2d 677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 2012
• 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a lengthy investigation, correction officers discovered that petitioner was using the inmate telephone system and correspondence to solicit his brother, his girlfriend and a facility cook to bring marihuana into the correctional facility for distribution. As a result, petitioner was charged in a misbehavior report with making three-way calls, possessing personal information of an employee, conspiring to possess drugs, smuggling and violating facility correspondence procedures. Petitioner pleaded guilty to making three-way calls and, following a tier III disciplinary hearing, was found guilty of all charges. The determination was affirmed upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to making three-way calls, he is precluded from challenging the determination with respect to this charge (see Matter of Kae v Bezio, 79 AD3d 1496, 1497 [2010]; Matter of Frazier v Prack, 62 AD3d 1185, 1185 [2009]). As for the remaining charges, the misbehavior report, testimony of the investigator who prepared it and the confidential testimony and documents considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt as to these charges (see Matter of Boyle v Fischer, 89 AD3d 1268 [2011]; Matter of Taylor v Fischer, 74 AD3d 1677, 1677 [2010]). Although petitioner denied any involvement in bringing drugs into the facility, as did the witnesses he called to testify upon his behalf, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]; Matter of Rivera v Goord, 3 AD3d 634, 635 [2004]). Petitioner’s remaining contentions are either unpreserved for our review or are lacking in merit.

Peters, P.J., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.