| Matter of Sullivan v Fischer |
| 2012 NY Slip Op 03901 [95 AD3d 1514] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Charles Sullivan, Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 lengthy investigation, correction officers discovered that petitioner was using theinmate telephone system and correspondence to solicit his brother, his girlfriend and a facilitycook to bring marihuana into the correctional facility for distribution. As a result, petitioner wascharged in a misbehavior report with making three-way calls, possessing personal information ofan employee, conspiring to possess drugs, smuggling and violating facility correspondenceprocedures. Petitioner pleaded guilty to making three-way calls and, following a tier IIIdisciplinary hearing, was found guilty of all charges. The determination was affirmed uponadministrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner pleaded guilty to making three-way calls, he isprecluded from challenging the determination with respect to this charge (see Matter of Kae v Bezio, 79 AD3d1496, 1497 [2010]; Matter ofFrazier v Prack, 62 AD3d 1185, 1185 [2009]). As for the remaining charges, themisbehavior report, testimony of the investigator who prepared it and the confidential testimonyand documents considered by the Hearing Officer in camera [*2]provide substantial evidence supporting the determination of guiltas to these charges (see Matter of Boylev Fischer, 89 AD3d 1268 [2011]; Matter of Taylor v Fischer, 74 AD3d 1677, 1677 [2010]). Althoughpetitioner denied any involvement in bringing drugs into the facility, as did the witnesses hecalled to testify upon his behalf, this presented a credibility issue for the Hearing Officer toresolve (see Matter of Pedraza vFischer, 65 AD3d 1434, 1435 [2009]; Matter of Rivera v Goord, 3 AD3d 634, 635 [2004]). Petitioner'sremaining contentions are either unpreserved for our review or are lacking in merit.
Peters, P.J., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.