Tingling v. Fischer

108 A.D.3d 989, 968 N.Y.S.2d 915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 2013
• 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During a pat frisk which led to a strip frisk, petitioner was found to have in his possession two packets containing a green leafy substance. The substance tested positive for marihuana. As a result, he was charged in a misbehavior report with possessing a controlled substance. At the tier III disciplinary hearing, petitioner pleaded guilty to the charge and explained that he was carrying the drugs for another inmate to pay off a debt. Petitioner was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Petitioner is precluded from challenging the sufficiency of the evidence supporting the determination of guilt because he pleaded guilty with explanation to the charge (see Matter of Perez v Bezio, 98 AD3d 1148, 1149 [2012]; Matter of Ayrhart v Fischer, 94 AD3d 1310, 1311 [2012]). While he claims that the proper procedure for establishing the chain of custody of the substance tested was not followed (see 7 NYCRR 1010.4 [b]), this is irrelevant in light of his admission to possessing a controlled substance. In any event, we find that this claim is without merit (see Matter of Pinkney v Goord, 302 AD2d 815, 816 [2003]), as are the remaining claims he raises in his brief.

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