| Matter of King v Fischer |
| 2009 NY Slip Op 03987 [62 AD3d 1194] |
| May 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of Frank King, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in two misbehavior reports with refusing a direct order, possessing anunauthorized identification card, possessing identifying information of a facility employee andorganizing a demonstration. A combined tier III disciplinary hearing ensued, at which petitionerpleaded guilty to possessing an unauthorized identification card and not guilty to the remainingcharges. At the conclusion of the hearing, petitioner was found guilty of organizing ademonstration and possessing an unauthorized identification card and a penalty was imposed.Following an administrative appeal and further discretionary review, the demonstration chargewas dismissed without any modification in penalty. Petitioner thereafter commenced this CPLRarticle 78 proceeding to challenge the determination of guilt as to the sole remainingcharge—possession of an unauthorized identification card.
We confirm. Petitioner pleaded guilty to possessing an unauthorized identification card andtherefore is precluded from challenging the sufficiency of the evidence with respect thereto (see Matter of Purcell v McKoy, 54AD3d 1113, 1114 [2008]; Matterof Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]). To the extent that petitionercontends that the misbehavior reports [*2]were written inretaliation for his utilization of the grievance process, this presented a credibility issue for theHearing Officer to resolve (see Matter of Odom v Selsky, 58 AD3d 1060, 1061 [2009];Matter of Belot v Selsky, 56 AD3d911, 912 [2008]).
Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.