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In the Matter of John Regan v. Brian Fischer

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


September 29, 2011

IN THE MATTER OF JOHN REGAN, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.

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

After correspondence sent by petitioner was returned to the correctional facility where he was incarcerated, it was opened by mail room staff and found to contain a resident index list that included the names and cell locations of other inmates. As a result, petitioner was served with a misbehavior report charging him with possession of contraband, smuggling, refusing a direct order and violating facility correspondence procedures.

At a tier III disciplinary hearing, petitioner pleaded guilty to all charges and the resulting determination of guilt was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. Petitioner is foreclosed from challenging the determination of guilt inasmuch as he pleaded guilty to all of the charges during the disciplinary hearing (see Matter of Correnti v Fischer, 83 AD3d 1354, 1354 [2011]; Matter of Hawkins v Fischer, 72 AD3d 1378, 1379 [2010]). Additionally, our review of the severity of the penalty assessed reveals that it was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Phipps v Fischer, 82 AD3d 1396, 1397 [2011]; Matter of Barca v Fischer, 80 AD3d 1038, 1039 [2011], lv denied 16 NY3d 711 [2011]).

Petitioner's remaining arguments have been examined and found to be without merit.

Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., 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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