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In the Matter of David Church

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


November 8, 2012

IN THE MATTER OF DAVID CHURCH, PETITIONER, V BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 26, 2012

Before: Peters, P.J., Spain, Kavanagh, Stein and McCarthy, 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 certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found a number of items, namely, an extra state mattress and towels, a makeshift cooler constructed of styrofoam pieces, a synthesizer with obscured serial and inmate identification numbers, a fan clip, a roll of masking tape, three extension cords and a can lid. As a result, he was charged in a misbehavior report with possessing an altered item, possessing excessive state property, possessing property in a prohibited area and possessing contraband. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to possessing excessive state property and possessing contraband. He was ultimately found guilty of all of the charges. A penalty of one month in keeplock and loss of certain privileges was imposed, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding followed.

We confirm. Given that petitioner pleaded guilty to possessing excessive state property and possessing contraband, he is precluded from challenging the determination of guilt with respect thereto (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Linnen v Prack, 92 AD3d 986, 987 [2012]). As for the remaining charges, the misbehavior report, the testimony of its author, and petitioner's admission to possessing many of the items in question provide substantial evidence supporting the determination (see Matter of Cortes v Goord, 39 AD3d 1107, 1108 [2007]; Matter of Kalwasinski v Goord, 25 AD3d 1050, 1050 [2006]). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

Peters, P.J., Spain, Kavanagh, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121108

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