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In the Matter of John Perez

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


September 13, 2012

IN THE MATTER OF JOHN PEREZ, PETITIONER, V NORMAN BEZIO, AS DIRECTOR OF
SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: July 30, 2012

Before: Peters, P.J., Mercure, Lahtinen, Kavanagh 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Following a search of petitioner's cell, he was charged in a misbehavior report with the unauthorized possession of Uniform Commercial Code (hereinafter UCC) documents. At the tier III disciplinary hearing, petitioner pleaded guilty to the charge with the explanation that he forgot to throw out the UCC paperwork after he learned that it was prohibited. The Hearing Officer was not persuaded by petitioner's defense and found him guilty of the charged rule violation. The determination was upheld on administrative appeal, with a reduction in the penalty imposed, and this CPLR article 78 proceeding ensued.

We confirm. Regarding petitioner's primary contention that the determination of guilt was not supported by substantial evidence, we note that he "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" (Matter of Ayrhart v Fischer, 94 AD3d 1310, 1311 [2012]). Furthermore, contrary to petitioner's argument, the record does not support his claim that the Hearing Officer was biased or that the determination of guilt flowed from any alleged impartiality (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied 13 NY3d 709 [2009]).

Petitioner's remaining arguments, including his claim that the misbehavior report was defective, have been examined and found to be unpersuasive.

Peters, P.J., Mercure, Lahtinen, Kavanagh and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120913

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