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Riggsbee v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


August 6, 2009

IN THE MATTER OF TREMAYNE RIGGSBEE, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Mercure, J.P., Spain, Kane, Kavanagh and Garry, 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, a prison inmate, was charged in a misbehavior report with engaging in violent conduct, fighting and possessing a weapon. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to engaging in violent conduct and fighting but not guilty to possessing a weapon. A Hearing Officer thereafter found petitioner guilty of the first two violations and not guilty of the third, and imposed a penalty. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 raising both evidentiary and procedural challenges.

"Preliminarily, '[p]petitioner's guilty plea precludes any evidentiary challenge to the underlying determination'" (Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009], quoting Matter of Johnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]). "Similarly, petitioner's failure to raise any of his present procedural . . . claims at the disciplinary hearing renders those issues unpreserved for our review" (Matter of Johnson v Department of Correctional Servs., 53 AD3d at 747 [citations omitted]; see Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]; Matter of Tafari v Selsky 41 AD3d 1117 [2007], lv denied 9 NY2d 809 [2007]).

Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ., concur.

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

20090806

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