| Matter of Brown v Fischer |
| 2010 NY Slip Op 04301 [73 AD3d 1362] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edward Brown, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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.
Following the discovery of a substantial amount of marihuana in a package mailed to thecorrectional facility, a misbehavior report was issued charging petitioner with soliciting thesmuggling of, and conspiring to possess, the marihuana, as well as violating package room andcorrespondence procedures. At a tier III disciplinary hearing, petitioner pleaded guilty to thesmuggling and correspondence violation charges and was found guilty of the others. Uponadministrative appeal, the determination was modified to the extent of reducing the penaltyimposed, and this CPLR article 78 proceeding ensued.
We confirm. Petitioner is precluded from challenging the determination of guilt with regardto those charges he pleaded guilty to (see Matter of McMoore v Bezio, 67 AD3d 1218 [2009]; Matterof Dancy v Goord, 58 AD3d 922, 923 [2009]). As for the conspiracy and package roomviolation charges, the misbehavior report, documentary evidence and hearing testimony providesubstantial evidence supporting the determination of guilt (see Matter of Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]; Matter of Ermmarino v New York StateDept. of [*2]Correctional Servs., 43 AD3d 517, 517[2007]).[FN*]Contrary to petitioner's contention, the rule prohibiting drug possession was violated when heconspired to bring the marihuana into the facility (see Matter of Sanders v LaClair, 67 AD3d 1226, 1227 [2009]).
Mercure, J.P., Peters, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: The misbehavior reportincorrectly identified the charge alleging a conspiracy to possess drugs as a conspiracy tosmuggle; nevertheless, the correct rule number was cited, petitioner failed to object to thisdiscrepancy at the hearing and the Hearing Officer identified and applied the appropriate ruleviolation (see Matter of Combes vArtus, 62 AD3d 1134, 1134 n [2009]).