Opinion
2012-04-19
In the Matter of James HARVEY III, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Harvey III, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
James Harvey III, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., KAVANAGH 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 pen with a needle attached to the ink cartridge. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing contraband. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Inasmuch as petitioner pleaded guilty to possessing an altered item and possessing contraband, he is precluded from challenging the determination of guilt with respect to those charges ( see Matter of Rodriguez v. Fischer, 76 A.D.3d 1131, 1131–1132, 908 N.Y.S.2d 271 [2010]; Matter of Pedraza v. Fischer, 65 A.D.3d 1434, 1435, 886 N.Y.S.2d 237 [2009] ). As for the charge of possessing a weapon, the misbehavior report and related documentation, including a photograph clearly revealing that the item was a dangerous instrumentality ( see 7 NYCRR 270.2[B][14][i] ), provide substantial evidence supporting the determination of guilt with respect to that charge ( see Matter of Chiarappa v. Fischer, 84 A.D.3d 1628, 1629, 923 N.Y.S.2d 310 [2011]; Matter of Truman v. Fischer, 75 A.D.3d 1019, 1020, 907 N.Y.S.2d 343 [2010] ). Although petitioner denied possessing a weapon and asserted that he used the item to cut out pictures from magazines, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Vidal–Ortiz v. Fischer, 84 A.D.3d 1627, 1628, 923 N.Y.S.2d 312 [2011]; Matter of Haynes v. Bezio, 73 A.D.3d 1295, 1296, 903 N.Y.S.2d 165 [2010] ). His claim of hearing officer bias has not been preserved for our review due to his failure to raise it in his administrative appeal ( see Matter of Hall v. Fischer, 87 A.D.3d 1235, 1236, 930 N.Y.S.2d 299 [2011]; Matter of Crenshaw v. Fischer, 87 A.D.3d 1246, 1247, 931 N.Y.S.2d 416 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.