| Matter of McMoore v Bezio |
| 2009 NY Slip Op 05225 [63 AD3d 1463] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of James McMoore, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 worked as a law clerk in the prison law library. During a random search of thelibrary, including petitioner's desk and locker, a correction officer discovered a number ofdocuments that petitioner should not have had in his possession. These included departmentaldocuments belonging to correction officials, letters authored by petitioner and addressed to theBoard of Parole in which he impersonated family members as well as correction officials, andnumerous religious documents that he had been directed to store in another place. As a result,petitioner was charged in a misbehavior report with nine prison disciplinary rule violations.Following a tier III disciplinary hearing, he was found guilty of possessing property in anunauthorized area, refusing a direct order, impersonation and possessing departmentaldocuments without authorization. The determination was affirmed on administrative appeal. ThisCPLR article 78 proceeding ensued.
We confirm. Petitioner pleaded guilty with explanation to the charges of refusing a directorder, possessing property in an unauthorized area and impersonation. In view of this, he isprecluded from challenging the evidence upon which the determination disposing of these [*2]charges is based (see Matter of Ramirez v Goord, 32 AD3d 601, 601 [2006]; Matter of Cannon v Artus, 18 AD3d993, 994 [2005]). As for the charge of possessing departmental documents withoutauthorization, the misbehavior report, together with petitioner's testimony in which he admittedto possessing such documents, provide substantial evidence supporting the determination of guilt(see Matter of Adamson v Barto, 37AD3d 597, 598 [2007]; Matter ofRaqiyb v Goord, 24 AD3d 1013, 1013 [2005]). Petitioner's assertion that he possessedthe documents by accident presented a credibility issue for the Hearing Officer to resolve (see Matter of Frejomil v LaClair, 46AD3d 1061, 1061 [2007]).
His remaining contentions are not preserved for our review.
Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.