| Matter of Harvey v Fischer |
| 2012 NY Slip Op 02919 [94 AD3d 1303] |
| April 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of James Harvey III, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady 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 found petitionerguilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found a pen with a needle attached tothe ink cartridge. As a result, petitioner was charged in a misbehavior report with possessing aweapon, possessing an altered item and possessing contraband. He was found guilty of thecharges at the conclusion of a tier III disciplinary hearing and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Inasmuch as petitioner pleaded guilty to possessing an altered item andpossessing contraband, he is precluded from challenging the determination of guilt with respectto those charges (see Matter ofRodriguez v Fischer, 76 AD3d 1131, 1131-1132 [2010]; Matter of Pedraza v Fischer, 65 AD3d1434, 1435 [2009]). As for the charge of possessing a weapon, the misbehavior report andrelated documentation, including a photograph clearly revealing that the item was a dangerousinstrumentality (see 7 NYCRR 270.2 [B] [14] [i]), provide substantial evidencesupporting the determination of guilt with respect to that charge (see Matter of Chiarappa v Fischer, 84AD3d 1628, 1629 [2011]; Matter ofTruman v Fischer, 75 AD3d 1019, [*2]1020 [2010]).Although petitioner denied possessing a weapon and asserted that he used the item to cut outpictures from magazines, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Vidal-Ortiz v Fischer, 84AD3d 1627, 1628 [2011]; Matter ofHaynes v Bezio, 73 AD3d 1295, 1296 [2010]). His claim of hearing officer bias has notbeen preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Hall v Fischer, 87 AD3d1235, 1236 [2011]; Matter ofCrenshaw v Fischer, 87 AD3d 1246, 1247 [2011]).
Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.