| Matter of Weems v Fischer |
| 2011 NY Slip Op 02087 [82 AD3d 1454] |
| March 24, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kevin Weems, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review six determinations which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding to challenge one tierII prison disciplinary determination and five tier III prison disciplinary determinations. The tier IIdisciplinary determination found him guilty of refusing a direct order and failure to maintain cellorderliness. The first tier III determination, rendered in May 2009, found him guilty ofunauthorized exchange, unauthorized possession and possession of an altered document. Thesecond tier III determination, rendered in June 2009, found him guilty of refusing a direct order,creating a disturbance, interference and verbal harassment. The third tier III determination,rendered on July 12, 2009, found him guilty of making false statements, unauthorized exchange,violation of correspondence procedures and providing unauthorized legal assistance. The fourthtier III determination, rendered July 22, 2009, found him guilty of refusing a direct order,interference, failure to comply with frisk procedures and disturbing facility order. The fifth tier IIIdetermination, rendered July 15, 2009, found him guilty of committing an [*2]unhygienic act.
Initially, we note that Supreme Court did not err in transferring this proceeding, inasmuch aspetitioner has raised a question of substantial evidence with regard to each disciplinarydetermination (see Matter of Abreu vBezio, 71 AD3d 1341, 1341 [2010], appeal dismissed 15 NY3d 836 [2010]).Furthermore, inasmuch as the Attorney General has informed this Court that the determinationrendered July 15, 2009 has been administratively reversed and all references thereto expungedfrom petitioner's institutional record, that part of the petition has been rendered moot (see Matter of Arroyo v Fischer, 77AD3d 1002, 1003 [2010]; Matter ofWatson v Fischer, 73 AD3d 1303, 1304 [2010]).
With regard to the tier II determination, the record does not demonstrate that petitioner fileda timely administrative appeal and, therefore, our review is precluded by his failure to exhaust hisadministrative remedies (see Matter ofIfill v Fischer, 79 AD3d 1322, 1322 [2010]; Matter of Hendricks v FranklinCorrectional Facility, 249 AD2d 856 [1998]).
Turning to the remaining tier III determinations, we confirm the May 2009 determination.Petitioner pleaded guilty to unauthorized exchange and possession, admitting that he did not havepermission to possess the typewriter at issue, precluding his challenge to the finding of guilt onthose charges (see Matter of Rodriguezv Fischer, 76 AD3d 1131, 1131-1132 [2010]; Matter of Brown v Fischer, 73 AD3d 1362, 1363 [2010]).Furthermore, we find that substantial evidence supported the finding of guilt with regard topossession of an altered document based upon the detailed misbehavior report and a copy of thedocument itself, an altered permit (seeMatter of Engles v Fischer, 78 AD3d 1410, 1411 [2010]; Matter of Hernandez v Fischer, 67AD3d 1225, 1225 [2009]). We also find that substantial evidence supports the June 2009determination, where the detailed misbehavior report, the hearing testimony and the videotape ofthe events reveal that, after correction officers found contraband in petitioner's cell, he becameverbally abusive, refused a direct order to close a cell door and was kicking his cell door andyelling, ignoring all direction from staff (see Matter of Porter v Goord, 47 AD3d 978, 979 [2008]).
With regard to the July 12, 2009 determination, we note that petitioner pleaded guilty to thecharges of making false statements and providing unauthorized legal assistance (see Matter ofRodriguez v Fischer, 76 AD3d at 1131-1132). Furthermore, we find that the detailedmisbehavior report, hearing testimony and documentary evidence provides substantial evidenceto support the finding of guilt on the remaining charges (see Matter of Green v Bezio, 76 AD3d 1135, 1135 [2010]; Matter of McDaniels v Bezio, 76AD3d 1129, 1129 [2010]). Finally, with regard to the July 22, 2009 determination, we findthat the misbehavior reports, hearing testimony and videotapes provide substantial evidence tosupport the determination of guilt (see Matter of Porter v Goord, 47 AD3d at 979).
Contrary to petitioner's contentions, we find that the hearing transcripts, while containingminor gaps, were sufficient to facilitate meaningful judicial review (see Matter of Reese v Bezio, 75 AD3d1029, 1030 [2010]; Matter ofTaylor v Fischer, 74 AD3d 1677, 1677-1678 [2010]). We are also satisfied, upon ourreview of the record, that the findings of guilt rendered against petitioner were a result of theevidence presented against him, rather than from alleged hearing officer bias (see Matter of Lamphear v Fischer, 76AD3d 1166 [2010]).
We have examined petitioner's remaining contentions and have found them to be either [*3]unpreserved for our review or without merit.
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that the portion of thepetition challenging the July 15, 2009 tier III determination is dismissed, as moot, without costs.Adjudged that the portion of the petition challenging the tier II determination is dismissed,without costs. Adjudged that the remaining tier III determinations are confirmed, without costs,and petition dismissed to that extent.