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In the Matter of Jerry v. Norman Bezio

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


November 17, 2011

IN THE MATTER OF JERRY LINEBERGER, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Calendar Date: September 28, 2011

Before: Peters, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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

A correction officer observed petitioner engaged in a physical altercation with another inmate and, as a result, he was charged in a misbehavior report with fighting, assault, engaging in violent conduct and possessing a weapon. At a January 2010 tier III disciplinary hearing, petitioner pleaded guilty to fighting and engaging in violent conduct, and a hearing was then conducted on the remaining charges. Thereafter, he was found guilty of all the remaining charges; however, the assault and weapon charges were dismissed on administrative appeal and the penalty was modified. This CPLR article 78 proceeding ensued.

Although the petition raised a question of substantial evidence, petitioner has abandoned that claim by not raising it in his brief (see Matter of Garcia v Smith, 78 AD3d 1362, 1363 n [2010]). In any event, petitioner's guilty plea to the charges of fighting and engaging in violent conduct precludes him from challenging the sufficiency of the evidence as to those charges (see Matter of Lamere v Fischer, 87 AD3d 768 [2011]; Matter of Surdis v Walsh, 301 AD2d 900 [2003]). To the extent that it was properly before us, petitioner's sole remaining contention, that he was not provided adequate employee assistance, has been reviewed and found to be without merit.

Peters, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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