Opinion
528234
06-27-2019
In the Matter of Robert HAIGLER, Petitioner, v. Lynn J. LILLEY, as Superintendent of Woodbourne Correctional Facility, Respondent.
Robert Haigler, Woodbourne, petitioner pro se. Letitia James, Attorney General, Albany (Robyn P. Ryan of counsel), for respondent.
Robert Haigler, Woodbourne, petitioner pro se.
Letitia James, Attorney General, Albany (Robyn P. Ryan of counsel), for respondent.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule. Petitioner was charged in a misbehavior report with violating five prison disciplinary rules, including possession of contraband, after he was observed wearing a pair of name-brand sneakers that are not permitted. Following a tier II disciplinary hearing, petitioner was found guilty of the contraband charge and not guilty of the remaining charges, and a penalty was imposed. The determination was upheld on administrative appeal, and petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of its author and petitioner's admission that he possessed the sneakers provided substantial evidence supporting the sustained charge (see Matter of Diaz v. Lee, 171 A.D.3d 1382, 1382–1383, 98 N.Y.S.3d 361 [2019] ). Petitioner's assertion that he was unaware that the sneakers constituted contraband did not absolve him of guilt and, at most, created a credibility issue for the Hearing Officer to resolve (see Matter of Kelly v. Department of Correctional Servs., 75 A.D.3d 672, 673, 903 N.Y.S.2d 272 [2010] ; Matter of McCollum v. Fischer, 61 A.D.3d 1194, 1194, 876 N.Y.S.2d 766 [2009], lv denied 13 N.Y.3d 703, 886 N.Y.S.2d 365, 915 N.E.2d 290 [2009] ). Likewise, his claim that he brought the sneakers from his prior facility, which was contradicted by the documentary evidence, presented a credibility issue for the Hearing Officer to resolve and did not undermine the finding that the sneakers were not permitted at this facility (see Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1185, 70 N.Y.S.3d 587 [2018] ). Petitioner's contentions that the sneakers were not accurately described in the misbehavior report and that he requested the testimony of a correction officer who searched his personal property bag upon arrival to the facility are unpreserved, as they were not raised at the hearing or on his administrative appeal (see Matter of Davis v. Lempke, 148 A.D.3d 1366, 1367, 48 N.Y.S.3d 630 [2017] ; Matter of Spirles v. Laramay, 137 A.D.3d 1400, 1400, 26 N.Y.S.3d 489 [2016], lv denied 27 N.Y.3d 907, 36 N.Y.S.3d 621, 56 N.E.3d 901 [2016] ). His remaining claims have been considered and, to the extent they are preserved, have been found to lack merit.
Egan Jr., J.P., Clark, Devine, Rumsey and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.