| Matter of Decastro v Prack |
| 2009 NY Slip Op 04145 [62 AD3d 1224] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Vincent Decastro, Petitioner, v Albert Prack, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating temporary release rules andfacility correspondence procedures. A tier III disciplinary hearing ensued, at which petitionerpleaded guilty to the charges and raised an objection as to the timeliness of the misbehaviorreport. Petitioner was found guilty of all charges and a penalty was imposed. Following anunsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding tochallenge the determination of guilt.
Preliminarily, "[p]etitioner's guilty plea precludes any evidentiary challenge to theunderlying determination" (Matter ofJohnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]; see Matter of Wilson v Dubray, 54AD3d 1089, 1090 [2008]). As for the timeliness of the misbehavior report, the relevantregulation requires only that the report be written " 'as soon as practicable' after the events thatg[a]ve rise to it" (Matter of Presley v Miller, 306 AD2d 707, 707 [2003], quoting 7NYCRR 251-3.1 [a]). Here, although the misbehavior report indeed was written approximately40 days after the underlying event, petitioner's own testimony [*2]demonstrates that the report was issued only one week after he wasinterviewed by a correction sergeant regarding this incident and provided a written statement inconjunction therewith. Inasmuch as the report was issued at the conclusion of an ongoinginvestigation into petitioner's conduct, we reject his claim that it was not tendered in a timelymanner (see Matter of Reed vGoord, 16 AD3d 796 [2005]; Matter of Presley v Miller, supra;Matter of Schultz v Goord, 301 AD2d 764, 764-765 [2003]). Finally, to the extent thatpetitioner challenges his apparent removal from a temporary release program, we need note onlythat such decision was the product of a separate administrative determination that is not beforethis Court for review (see Matter of Brown v Goord, 290 AD2d 901, 902 [2002]; seealso Matter of Johnson v Department of Correctional Servs., 53 AD3d at 747).
Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.