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King v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 21, 2009

IN THE MATTER OF FRANK KING, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: April 8, 2009

Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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 a prison disciplinary rule.

Petitioner was charged in two misbehavior reports with refusing a direct order, possessing an unauthorized identification card, possessing identifying information of a facility employee and organizing a demonstration. A combined tier III disciplinary hearing ensued, at which petitioner pleaded guilty to possessing an unauthorized identification card and not guilty to the remaining charges. At the conclusion of the hearing, petitioner was found guilty of organizing a demonstration and possessing an unauthorized identification card and a penalty was imposed. Following an administrative appeal and further discretionary review, the demonstration charge was dismissed without any modification in penalty. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the determination of guilt as to the sole remaining charge — possession of an unauthorized identification card.

We confirm. Petitioner pleaded guilty to possessing an unauthorized identification card and therefore is precluded from challenging the sufficiency of the evidence with respect thereto (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]). To the extent that petitioner contends that the misbehavior reports were written in retaliation for his utilization of the grievance process, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Odom v Selsky, 58 AD3d 1060, 1061 [2009]; Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]).

Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20090521

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