| Matter of Riggsbee v Fischer |
| 2009 NY Slip Op 06096 [65 AD3d 729] |
| August 6, 2009 |
| Appellate Division, Third Department |
| In the Matter of Tremayne Riggsbee, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus Mastracco 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 certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with engaging in violentconduct, fighting and possessing a weapon. At the ensuing tier III disciplinary hearing, petitionerpleaded guilty to engaging in violent conduct and fighting but not guilty to possessing a weapon.A Hearing Officer thereafter found petitioner guilty of the first two violations and not guilty ofthe third, and imposed a penalty. Following an unsuccessful administrative appeal, petitionercommenced this CPLR article 78 raising both evidentiary and procedural challenges.
"Preliminarily, '[p]etitioner's guilty plea precludes any evidentiary challenge to theunderlying determination' " (Matter ofDecastro v Prack, 62 AD3d 1224, 1225 [2009], quoting Matter of Johnson v Department ofCorrectional Servs., 53 AD3d 746, 747 [2008]). "Similarly, petitioner's failure to raiseany of his present procedural . . . claims at the disciplinary hearing renders thoseissues unpreserved for our review" (Matter of Johnson v Department of CorrectionalServs., 53 AD3d at 747 [citations omitted]; see Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]; Matter of Tafari v Selsky, 41 AD3d1117 [2007], lv denied 9 NY3d 809 [2007]).[*2]
Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.