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McMoore v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF JAMES B. MCMOORE, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting soliciting and smuggling. The charges stemmed from the discovery of letters written by petitioner requesting other inmates to provide him with stamps, which he was not allowed to have at that time due to a prior rule violation. At a tier III disciplinary hearing, petitioner was found guilty as charged based upon his plea of guilty with an explanation to both charges. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. Initially, petitioner is precluded from challenging the determination of guilt by his plea of guilty with an explanation to both charges (see Matter of Dancy v Goord, 58 AD3d 922, 923 [2009]; Matter of Spencer v Goord, 38 AD3d 1028, 1028 [2007], lv denied 9 NY3d 802 [2007]). Furthermore, petitioner's contention that he was improperly denied the right to call the author of the misbehavior report as a witness at the disciplinary hearing is without merit. Petitioner was given an opportunity to adjourn the hearing until that officer was available, and petitioner specifically waived his request to have him testify (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]).

Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur.

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

20091119

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