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Madill v. Votraw

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


January 14, 2010

IN THE MATTER OF JAMES W. MADILL, PETITIONER,
v.
TIM VOTRAW, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Rose, Lahtinen, McCarthy 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 the Commissioner of Correctional Services which found petitioner guilty of violating a certain prison disciplinary rule.

After another inmate's crime and sentencing information was found in a folder in petitioner's cell during a search, he was charged in a misbehavior report with, among other things, its unauthorized possession. During a tier III disciplinary hearing, petitioner pleaded guilty to that charge in satisfaction of the entire misbehavior report. An unsuccessful administrative appeal followed, after which petitioner commenced this CPLR article 78 proceeding.

Inasmuch as petitioner's guilty plea precludes him from challenging the underlying determination, we confirm (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied 13 NY3d 709 [2009]; Matter of Johnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]). In addition, we are unpersuaded that the penalty petitioner received, two months in the special housing unit and a loss of certain privileges for a commensurate length of time, are so severe as to shock one's sense of fairness (see Matter of Martinez v Goord, 48 AD3d 851, 851 [2008]; Matter of Rivera v Goord, 38 AD3d 964, 964-965 [2007]).

We have examined petitioner's remaining contention and found it to be without merit.

Cardona, P.J., Rose, Lahtinen, McCarthy and Garry, JJ., concur.

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

20100114

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