| Matter of McMoore v Bezio |
| 2009 NY Slip Op 08531 [67 AD3d 1218] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of James B. McMoore, Petitioner, v Norman Bezio,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain disciplinary rules.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rulesprohibiting soliciting and smuggling. The charges stemmed from the discovery of letters writtenby petitioner requesting other inmates to provide him with stamps, which he was not allowed tohave at that time due to a prior rule violation. At a tier III disciplinary hearing, petitioner wasfound guilty as charged based upon his plea of guilty with an explanation to both charges. Thisdetermination was affirmed on administrative appeal, prompting petitioner to commence thisCPLR article 78 proceeding.
We confirm. Initially, petitioner is precluded from challenging the determination of guilt byhis plea of guilty with an explanation to both charges (see Matter of Dancy v Goord, 58AD3d 922, 923 [2009]; Matter ofSpencer v Goord, 38 AD3d 1028, 1028 [2007], lv denied 9 NY3d 802 [2007]).Furthermore, petitioner's contention that he was improperly denied the right to call the author ofthe misbehavior report as a witness at the disciplinary hearing is without merit. Petitioner wasgiven an opportunity to adjourn the hearing until that officer was available, [*2]and petitioner specifically waived his request to have him testify(see Matter of Davis v Prack, 63AD3d 1457, 1458 [2009]).
Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.