| Matter of Cruz v Walsh |
| 2011 NY Slip Op 06610 [87 AD3d 1234] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of David Cruz, Petitioner, v James Walsh, asSuperintendent of Sullivan Correctional Facility, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Sullivan County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was found to be in possession of a bag, containing what appeared to be clothing,that had been left for him by another inmate. When a correction officer asked him questionsabout the bag, petitioner responded that it contained his laundry, including a pair of sneakers thathe had wanted cleaned but that were rejected. The officer proceeded to open the bag and foundnumerous items of clothing as well as a brand new pair of sneakers, size 12, which were notlisted among the items that petitioner had received from the package room. As a result, petitionerwas charged in a misbehavior report with engaging in an unauthorized exchange, smuggling andmaking a false statement. Following a tier II disciplinary hearing, he was found guilty of thecharges and the determination was affirmed on administrative appeal. This CPLR article 78proceeding ensued.
We confirm. Petitioner's plea of guilty to the charge of engaging in an unauthorized exchangeprecludes him from challenging the evidence supporting the determination of guilt with respectto that charge (see Matter of Weems vFischer, 82 AD3d 1454, 1455 [2011]; Matter of Harrison v Selsky, 2 AD3d 1232, 1232-1233 [2003]).Moreover, the detailed misbehavior report, together with the testimony adduced at the hearing,provide substantial evidence [*2]supporting the determinationfinding petitioner guilty of the remaining charges (see Matter of Williams v Walsh, 56 AD3d 923 [2008]; Matter of Roman v Goord, 11 AD3d858, 859 [2004]). Furthermore, we find no support in the record for petitioner's claim thatthe Hearing Officer was biased nor is there any indication that the determination flowed from anyalleged bias (see Matter of Engles vFischer, 78 AD3d 1410, 1411 [2010]; Matter of Arriaga v Smith, 70 AD3d 1160, 1160 [2010]).Petitioner's remaining contentions have not been preserved for our review due to his failure toraise them at the hearing.
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.