Opinion
2012-04-19
In the Matter of Harry AYRHART, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Harry Ayrhart, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Harry Ayrhart, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with the use of a controlled substance after his urine twice tested positive for the presence of cannabinoids. Petitioner pleaded guilty to the charge with the explanation that he was exposed to heavy secondhand smoke as a result of other inmates smoking in the dorm showers. The Hearing Officer rejected petitioner's defense and found him guilty of the charged rule violation. Following an unsuccessful administrative appeal, this CPLR article 78 proceeding ensued.
We confirm. Petitioner is precluded from challenging the sufficiency of the evidence supporting the determination of guilt by virtue of his plea of guilty with an explanation to the charge ( see Matter of McMoore v. Bezio, 67 A.D.3d 1218, 888 N.Y.S.2d 678 [2009]; Matter of Singleton v. Dubray, 61 A.D.3d 1223, 1224, 876 N.Y.S.2d 663 [2009] ). Furthermore, petitioner's procedural challenges, including that the Hearing Officer refused to consider his defense, are unpreserved for our review given his failure to raise them at the hearing ( see Matter of Shannon v. Fischer, 73 A.D.3d 1373, 1374, 900 N.Y.S.2d 690 [2010], lv. denied 15 N.Y.3d 708, 2010 WL 3583168 [2010]; Matter of Perez v. Goord, 304 A.D.2d 939, 939, 757 N.Y.S.2d 382 [2003] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.