Opinion
2012-11-21
In the Matter of Pablo VALDEZ, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Pablo Valdez, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Pablo Valdez, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., ROSE, MALONE JR., McCARTHY and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with solicitation, gambling, making threats, making false statements and engaging in an unauthorized exchange after he loaned money to another inmate and threatened to stab the inmate if the debt was not paid by a certain date. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange and was found guilty of the remaining charges. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding followed.
We confirm. Initially, insofar as petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange, he is precluded from challenging the determination of guilt with respect to those charges ( see Matter of Harvey v. Fischer, 94 A.D.3d 1303, 1303, 942 N.Y.S.2d 680 [2012];Matter of Linnen v. Prack, 92 A.D.3d 986, 987, 937 N.Y.S.2d 701 [2012] ). As for the remaining charges, the detailed misbehavior report and related documentation, together with the testimony of the inmate who was threatened and the correction sergeant who spoke with both that inmate and the inmate's wife, provide substantial evidence supporting the determination of guilt ( see Matter of Somerville v. Fischer, 94 A.D.3d 1311, 1312, 942 N.Y.S.2d 386 [2012],lv. denied19 N.Y.3d 810, 2012 WL 3743869 [2012]; Matter of Mungo v. Bezio, 93 A.D.3d 1057, 1057, 940 N.Y.S.2d 696 [2012],appeal dismissed19 N.Y.3d 919, 950 N.Y.S.2d 87, 973 N.E.2d 183 [2012] ). The contrary testimony given by petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve ( see Matter of Carrasco v. Fischer, 96 A.D.3d 1315, 1316, 947 N.Y.S.2d 219 [2012];Matter of Cruz v. Fischer, 94 A.D.3d 1296, 1297, 942 N.Y.S.2d 673 [2012] ). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.