| Matter of Davis v Fischer |
| 2009 NY Slip Op 05668 [64 AD3d 847] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Samuel Davis, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer discovered two large stones in a net bag belonging to petitioner. Whenpetitioner failed to provide the officer with an explanation for his possession of the stones, hewas charged in a misbehavior report with possessing a weapon, possessing contraband andpossessing an unauthorized item. The following day, another correction officer found a numberof items in petitioner's cell, including a white sock with a rock inside, an orange T-shirt and a hotpot. Petitioner was charged in a second misbehavior report with the same disciplinary ruleviolations. Separate tier III disciplinary hearings were thereafter held with respect to the chargescontained in each misbehavior report. Petitioner was found guilty of all of the charges containedin the first report. On administrative appeal, the charge of possessing a weapon was dismissedwhile the other charges were upheld. Petitioner was found guilty of all of the charges containedin the second misbehavior report and this determination was upheld in its entirety onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Petitioner's plea of guilty with explanation to the charges of possessing [*2]contraband and possessing an unauthorized item as contained in thefirst misbehavior report precludes him from challenging the determination of guilt with respectto these charges (see Matter of Ramirezv Goord, 32 AD3d 601, 601 [2006]; Matter of Barber v Selsky, 23 AD3d 731, 732 [2005]). Moreover,inasmuch as the weapons charge contained in the first misbehavior report was dismissed onadministrative appeal, his claims pertaining to it are moot (see Matter of Polite v Goord, 49 AD3d 944 [2008]). As for thecharges contained in the second misbehavior report, the report itself, together with petitioner'sadmission to possessing the items in question, constitute substantial evidence supporting thedetermination of guilt (see Matter ofSmith v Fischer, 60 AD3d 1230 [2009]; Matter of Rivera v McGinnis, 290AD2d 800, 800 [2002], lv denied 98 NY2d 601 [2002]). Contrary to petitioner's claim,our review of the transcripts of the disciplinary hearings indicates that, despite numerousinaudible gaps, meaningful review is not precluded (see Matter of Berry v Goord, 42 AD3d 614, 615 [2007]; Matter of McKinley v Goord, 40AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]). Likewise, upon reviewingthese transcripts, there is no indication that the Hearing Officers were biased or that thedeterminations at issue flowed from any alleged bias (see Matter of Webb v Leclaire, 52 AD3d 1131, 1132 [2008]; Matter of Vigliotti v Bell, 52 AD3d1064 [2008]). Petitioner's remaining contentions have been considered and, to the extentthey were preserved, are lacking in merit.
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.