Opinion
1310 TP 18–01178
03-15-2019
In the Matter of Martin WASHINGTON, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier III disciplinary hearing, that he violated several inmate rules. To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 ( 7 NYCRR 270.2 [B][5][ii] [violent conduct] ), 104.13 ( 7 NYCRR 270.2 [B][5][iv] [creating a disturbance] ), 100.13 ( 7 NYCRR 270.2 [B][1][iv] [fighting] ), and 106.10 ( 7 NYCRR 270.2 [B][7][i] [direct order] ) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention (see Matter of Ingram v. Annucci , 151 A.D.3d 1778, 1778, 53 N.Y.S.3d 872 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 67 N.Y.S.3d 577, 89 N.E.3d 1257 [2017] ; Matter of Williams v. Annucci , 133 A.D.3d 1362, 1363, 19 N.Y.S.3d 840 [4th Dept. 2015] ). Contrary to petitioner's further contention, the misbehavior report, photographs of the weapon, video of the incident, and the testimony of the correction officer who observed the weapon in petitioner's hand constitute substantial evidence that petitioner violated inmate rules 113.10 ( 7 NYCRR 270.2 [B][14][i] [weapon] ) and 107.10 ( 7 NYCRR 270.2 [B][8][i] [interference]; see generally Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; People ex rel. Vega v. Smith , 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). The contrary testimony of petitioner and the other inmate involved in the disturbance raised, at most, an issue of credibility for resolution by the Hearing Officer (see Foster , 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).