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In the Matter of Pablo v. Brian Fischer

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


November 21, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: September 26, 2012

Before: Peters, P.J., Rose, Malone Jr., McCarthy 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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with solicitation, gambling, making threats, making false statements and engaging in an unauthorized exchange after he loaned money to another inmate and threatened to stab the inmate if the debt was not paid by a certain date. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange and was found guilty of the remaining charges. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding followed.

We confirm. Initially, insofar as petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange, he is precluded from challenging the determination of guilt with respect to those charges (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 detailed misbehavior report and related documentation, together with the testimony of the inmate who was threatened and the correction sergeant who spoke with both that inmate and the inmate's wife, provide substantial evidence supporting the determination of guilt (see Matter of Sommerville v Fischer, 94 AD3d 1311, 1312 [2012], lv denied 19 NY3d 810 [2012]; Matter of Mungo v Bezio, 93 AD3d 1057, 1057 [2012], appeal dismissed 19 NY3d 919 [2012]). The contrary testimony given by petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Carrasco v Fischer, 96 AD3d 1315, 1316 [2012]; Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

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

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

ENTER: Robert D. Mayberger Clerk of the Court

20121121

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