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In the Matter of Wilfredo v. Brian Fischer

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


May 17, 2012

IN THE MATTER OF WILFREDO ROSARIO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 4, 2012

Before: Peters, P.J., Rose, Malone Jr., McCarthy and Garry, 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.

After returning from court, petitioner refused a correction officer's directive to report to a program. Consequently, he was charged in a misbehavior report with refusing a direct order and failing to accept a program assignment. He was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the charge of failing to accept a program assignment was dismissed, but the remainder of the determination was upheld. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt (see Matter of Lineberger v Bezio, 89 AD3d 1293, 1294 [2011], appeal dismissed ___ NY3d ___ [May 8, 2012]; Matter of Cruz v Walsh, 87 AD3d 1234, 1234 [2011]). Petitioner's further claim that the Hearing Officer did not provide him with an adequate statement of evidence relied upon has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]).

Peters, P.J., Rose, Malone Jr., McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120517

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