State of New York Supreme Court, Appellate Division Third Judicial Department
April 19, 2012
IN THE MATTER OF HARRY AYRHART, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: February 21, 2012
Before: Peters, P.J., Spain, Stein, Garry and Egan Jr., 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 respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with the use of a controlled substance after his urine twice tested positive for the presence of cannabinoids. Petitioner pleaded guilty to the charge with the explanation that he was exposed to heavy secondhand smoke as a result of other inmates smoking in the dorm showers. The Hearing Officer rejected petitioner's defense and found him guilty of the charged rule violation. Following an unsuccessful administrative appeal, this CPLR article 78 proceeding ensued.
We confirm. Petitioner is precluded from challenging the sufficiency of the evidence supporting the determination of guilt by virtue of his plea of guilty with an explanation to the charge (see Matter of McMoore v Bezio, 67 AD3d 1218 ; Matter of Singelton v Dubray, 61 AD3d 1223, 1224 ). Furthermore, petitioner's procedural challenges, including that the Hearing Officer refused to consider his defense, are unpreserved for our review given his failure to raise them at the hearing (see Matter of Shannon v Fischer, 73 AD3d 1373, 1374 , lv denied 15 NY3d 708 ; Matter of Perez v Goord, 304 AD2d 939, 939 ).
Peters, P.J., Spain, Stein, Garry and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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