| Matter of Pedraza v Fischer |
| 2009 NY Slip Op 06622 [65 AD3d 1434] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Antonio Pedraza, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.
During a search of petitioner's cell, correction officers found a makeshift weapon consistingof two can lids melted into a toothbrush handle, as well as four pills, identified by a facility nurseas a prescription drug. As a result, petitioner was charged in a misbehavior report withpossessing a weapon and possessing unauthorized medication. After the search and while beingescorted to the special housing unit, petitioner engaged in a struggle with correction officersduring which he pushed one officer into a fence and shouted profanities at the officers in thepresence of about 50 other inmates. He was, in turn, charged in a second misbehavior report withassaulting staff, interfering with an employee, creating a disturbance and engaging in violentconduct. A tier III disciplinary hearing was subsequently conducted on the charges contained inboth misbehavior reports. At the conclusion of the hearing, he was found guilty of all of thecharges. After the determination was affirmed on administrative appeal, petitioner commencedthis CPLR article 78 proceeding.
We confirm. Initially, inasmuch as petitioner pleaded guilty to the charges of creating a[*2]disturbance and engaging in violent conduct, he is precludedfrom challenging the evidence supporting these charges (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Wilson v Dubray, 54 AD3d1089, 1090 [2008]). As for the remaining charges, the misbehavior reports, documentaryevidence and testimony adduced at the hearing provide substantial evidence supporting thedetermination of guilt (see Matter ofPeana v Fischer, 54 AD3d 1126, 1126-1127 [2008]; Matter of Wilson vDubray, 54 AD3d at 1090). While petitioner maintained that he was "set up" by correctionofficers, and many of his inmate witnesses denied observing any altercation, such testimonypresented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]). Furthermore, we find noimpropriety in the Hearing Officer's removal of petitioner from the hearing inasmuch as this wasdone after the disposition was rendered and was necessitated by petitioner's disruptive andbelligerent conduct (see Matter ofApplewhite v Goord, 49 AD3d 1046, 1047 [2008]). Lastly, by failing to raise it at thehearing, petitioner has not preserved his claim that the Hearing Officer improperly failed toconsider his mental health status (seeMatter of Butler v Selsky, 49 AD3d 1122, 1123 [2008]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.