Opinion
524445
12-07-2017
In the Matter of Ramon PEQUERO, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Ramon Pequero, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Ramon Pequero, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ.
MEMORANDUM AND JUDGMENTProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing contraband and possessing an authorized item in an unauthorized area stemming from a fellow inmate handing petitioner eight sugar packets through petitioner's cell bars. Following a tier II disciplinary hearing, petitioner was found guilty of both charges based upon the misbehavior report and his pleas of guilty. Other than a modification of the penalty imposed, the determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. In light of petitioner's pleas of guilty to both charges, admitting that he had asked an inmate to bring him sugar when returning from "chow" and that he, without permission, stuck his hands out of the gate to accept the sugar, petitioner is precluded from challenging the determination of guilt (see Matter of Clarke v. Venettozzi, 139 A.D.3d 1221, 1221, 32 N.Y.S.3d 353 [2016] ; Matter of Abrahams v. Annucci, 134 A.D.3d 1368, 1369, 21 N.Y.S.3d 766 [2015] ). There is no indication in the record that his guilty pleas were coerced or otherwise not knowing, voluntary and intelligent (see Matter of Simpson v. Annucci, 134 A.D.3d 1264, 1264, 19 N.Y.S.3d 916 [2015], lv denied 27 N.Y.3d 908, 2016 WL 3199323 [2016] ; Matter of Thorpe v. Fischer, 53 A.D.3d 1003, 1004, 862 N.Y.S.2d 636 [2008] ). Further, the record fails to support petitioner's contention that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Freeman v. Annucci, 151 A.D.3d 1509, 1511, 54 N.Y.S.3d 602 [2017] ; Matter of Mays v. Cunningham, 140 A.D.3d 1511, 1512, 33 N.Y.S.3d 767 [2016] ). We have reviewed petitioner's remaining contentions, including that the misbehavior report did not warrant a tier II designation and that the penalty was severe, and find them either unpreserved or without merit (see Matter of Headley v. Annucci, 150 A.D.3d 1513, 1514, 54 N.Y.S.3d 459 [2017] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ., concur.