State of New York Supreme Court, Appellate Division Third Judicial Department
July 1, 2010
IN THE MATTER OF MUHSIN FARID HIZBULLAH, PETITIONER,
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: May 12, 2010
Before: Cardona, P.J., Peters, Rose, Kavanagh 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 prison disciplinary rules.
Petitioner, a prison inmate, was served with a misbehavior report charging him with possession of contraband and gang-related materials after a frisk of his cell revealed a match striker and written materials that included a handwritten manuscript and notes about gangs in prison. Petitioner pleaded guilty to possession of contraband during a tier III disciplinary hearing and, thereafter, was found guilty of possession of gang- related materials. His administrative appeal was unavailing, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. Initially, we note that petitioner is precluded from challenging the determination relative to his possession of contraband due to his having pleaded guilty to that charge during the hearing (see Matter of Bosquet v Bezio, 69 AD3d 1257, 1258 ; Matter of Green v Bradt, 69 AD3d 1269, 1270 ). To the extent that he challenges the finding of guilt relative to the possession of gang-related materials, the misbehavior report and the testimony of the correction officer who authored it, petitioner's admissions that his manuscript was about gangs in prison and the materials confiscated from his cell provide substantial evidence to support the determination (see Matter of Cochran v Bezio, 70 AD3d 1161, 1162 ; Matter of Mercado v Selsky, 47 AD3d 1167, 1168 , lv denied 10 NY3d 713 ). Petitioner's remaining contentions, including that the determination was in violation of his rights of free speech under the US and NY Constitutions, are without merit (see Matter of Mercado v Selsky, 47 AD3d at 1168).
Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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