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In re Perea

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of JAIRO PEREA, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: May 6, 2013

Jairo Perea, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.

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

MEMORANDUM AND JUDGMENT

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 among a group of inmates being escorted to the afternoon meal. As the inmates reached the rotunda, they were given orders to proceed to the laundry gate. When one of the inmates was taken out of line for a random pat frisk, the remaining inmates, including petitioner, collectively refused to proceed further down the corridor despite several directives by correction staff to do so. Consequently, petitioner was charged in a misbehavior report with refusing a direct order and engaging in a demonstration. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, that part of the determination finding petitioner guilty of engaging in a demonstration is supported by substantial evidence consisting of the misbehavior report and hearing testimony (see Matter of Amen v James, 98 A.D.3d 772, 772 [2012]; Matter of Chiarappa v Fischer, 84 A.D.3d 1628, 1629 [2011]). Petitioner's exculpatory explanation for his failure to cooperate presented a credibility issue for the Hearing Officer to resolve (see Matter of Mungo v Director of Special Hous. & Inmate Disciplinary Programs, 93 A.D.3d 1057, 1058 [2012], appeal dismissed 19 N.Y.3d 919 [2012]; Matter of Chiarappa v Fischer, 84 A.D.3d at 1629) [1]. Finally, to the extent that petitioner challenges the evidence supporting that part of the determination finding him guilty of refusing a direct order, his guilty plea preludes such a challenge (see Matter of Toliver v Department of Corr., 98 A.D.3d 1170 [2012]; Matter of Rosario v Fischer, 95 A.D.3d 1528, 1529 [2012]). Therefore, we decline to disturb the determination of guilt.

Rose, J.P., Stein, McCarthy and Egan Jr., JJ., concur.

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


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