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In the Matter of Michel Toliver v. Department of Corrections et al

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


September 20, 2012

IN THE MATTER OF MICHEL TOLIVER,
PETITIONER,
v.
DEPARTMENT OF CORRECTIONS ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: July 30, 2012

Before: Rose, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner returned to his cell block in his wheelchair, but was ordered to put the wheelchair in the storage room and use his walker to return to his cell. Petitioner refused and maintained that he had medical authorization to use the wheelchair at all times. After correction officials confirmed that petitioner had medical authorization to use the wheelchair only for long distances, he was charged in a misbehavior report with refusing a direct order, making a false statement and violating facility movement regulations. Petitioner pleaded guilty with an explanation to the charge of refusing a direct order and, following a tier II disciplinary hearing, he was found not guilty of the remaining two charges. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. Inasmuch as petitioner pleaded guilty with explanation to refusing a direct order, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt (see Matter of Ayrhart v Fischer, 94 AD3d 1310, 1311 [2012]; Matter of McMoore v Bezio, 67 AD3d 1218 [2009]). Therefore, the determination must be confirmed.

Rose, J.P., Spain, Malone Jr., 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

20120920

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