| Matter of Lamere v Fischer |
| 2011 NY Slip Op 06156 [87 AD3d 768] |
| August 4, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jamie Lamere, Petitioner, v Brian Fischer, asCommissionerof Correctional Services, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court,entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with stalking, making threats and violatingfacility correspondence procedures in connection with a letter written by him to the victim of theoffense for which he is currently incarcerated. Following a tier III disciplinary hearing, petitionerwas found guilty of all three charges and was penalized with six months in the special housingunit, 24 months loss of correspondence privileges and 12 months loss of good time. Onadministrative appeal, the determination and penalty were upheld. Petitioner thereaftercommenced this CPLR article 78 proceeding.
Initially, inasmuch as petitioner pleaded guilty to the charges of making threats and violatingfacility correspondence procedures, he is precluded from challenging the determination of guiltwith regard to those charges (see Matterof Anthony v Fischer, 81 AD3d 1027, 1027 [2011]; Matter of Surdis v Walsh,301 AD2d 900 [2003]). The misbehavior report, supporting documentation and confidentialdocuments, as well as petitioner's own admission that he authored the subject letter, providesubstantial evidence supporting the determination of guilt [*2]onthe charge of stalking (see Matter of Anthony v Fischer, 81 AD3d at 1027; Matter of Davis v Fischer, 76 AD3d1154, 1155 [2010]; Matter ofDevaughn v Bezio, 75 AD3d 673, 673-674 [2010]). Given the violent nature of thethreats made and that they were lodged against the victim of petitioner's current offense withinmonths of his tentative release date, we are not persuaded by petitioner's contention that thepenalty imposed was excessive (seeMatter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030[2011]; Matter of Roussopoulas vCunningham, 76 AD3d 730, 731 [2010]; Matter of Griswold v Goord, 39 AD3d 908, 909 [2007]). We haveconsidered petitioner's remaining arguments and find them to be either unpreserved or withoutmerit.
Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.