Opinion
89059
December 13, 2001.
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.
Guillermo Gonzalez, Malone, petitioner pro se.
Eliot Spitzer, Attorney-General (Peter H. Schiff of counsel), Albany, for respondent.
Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.
MEMORANDUM AND JUDGMENT
As a result of petitioner's failure to return from a seven-day furlough, he was found guilty of violating the prison disciplinary rules which require compliance with temporary release rules and prohibit absconding. There is substantial evidence, including the misbehavior report and petitioner's admissions, to support the determination. Petitioner's contention that he was deprived of a witness was not timely raised either at the hearing or on administrative appeal. In any event, the record demonstrates that the witness testified by telephone, after which petitioner acknowledged that he had no further questions for the witness. Petitioner's remaining claim that respondent's determination violated double jeopardy principles is also lacking in merit, for the prior disciplinary determination upon which he relies was not based on either the violation of temporary release rules or absconding but, instead, was based upon petitioner's separate and distinct act of refusing to obey direct orders during the course of his apprehension (see, Matter of Green v. Selsky, 275 A.D.2d 867, lv denied 97 N.Y.2d 602 [Oct. 18, 2001]).
Mercure, Crew III, Peters and Spain, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.