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In the Matter of David Cruz v. James Walsh

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


September 29, 2011

IN THE MATTER OF DAVID CRUZ, PETITIONER,
v.
JAMES WALSH, AS SUPERINTENDENT OF SULLIVAN CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found to be in possession of a bag, containing what appeared to be clothing, that had been left for him by another inmate. When a correction officer asked him questions about the bag, petitioner responded that it contained his laundry, including a pair of sneakers that he had wanted cleaned but that were rejected. The officer proceeded to open the bag and found numerous items of clothing as well as a brand new pair of sneakers, size 12, which were not listed among the items that petitioner had received from the package room. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange, smuggling and making a false statement. Following a tier II disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Petitioner's plea of guilty to the charge of engaging in an unauthorized exchange precludes him from challenging the evidence supporting the determination of guilt with respect to that charge (see Matter of Weems v Fischer, 82 AD3d 1454, 1455 [2011]; Matter of Harrison v Selsky, 2 AD3d 1232, 1232-1233 [2003]). Moreover, the detailed misbehavior report, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination finding petitioner guilty of the remaining charges (see Matter of Williams v Walsh, 56 AD3d 923 [2008]; Matter of Roman v Goord, 11 AD3d 858, 859 [2004]). Furthermore, we find no support in the record for petitioner's claim that the Hearing Officer was biased nor is there any indication that the determination flowed from any alleged bias (see Matter of Engles v Fischer, 78 AD3d 1410, 1411 [2010]; Matter of Arriaga v Smith, 70 AD3d 1160, 1160 [2010]). Petitioner's remaining contentions have not been preserved for our review due to his failure to raise them at the hearing.

Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur.

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

ENTER: Robert D. Mayberger Clerk of the Court

20110929

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