Montilla v. Prack

• Decision Date: 24 May 2012
• Citation: 2012 N.Y. Slip Op. 04058,95 A.D.3d 1580,943 N.Y.S.2d 922
• Parties: In the Matter of Juan MONTILLA, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 04058

943 N.Y.S.2d 922

95 A.D.3d 1580

In the Matter of Juan MONTILLA, Petitioner,

v.Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 24, 2012.

Juan Montilla, Coxsackie, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

As a result of his failure to provide a urine sample for testing, petitioner was charged in a misbehavior report with failing to comply with urinalysis testing procedures and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Petitioner arguably pleaded guilty to the charges at issue, thereby precluding him from challenging the sufficiency of the evidence supporting the determination of guilt ( see Matter of Lineberger v. Bezio, 89 A.D.3d 1293, 1294, 932 N.Y.S.2d 738 [2011], appeal dismissed *923 19 N.Y.3d 847, 2012 WL 1592145 [May 8, 2012]; Matter of King v. Fischer, 62 A.D.3d 1194, 1195, 878 N.Y.S.2d 640 [2009] ). However, even in the absence of such plea, the determination of guilt was supported by substantial evidence, including the inmate's admission that he did not provide a urine sample, the misbehavior report and the testimony of the nurse administrator. Moreover, petitioner's explanation for his failure to provide a urine sample presented a credibility issue for the Hearing Officer to resolve ( see Matter of Malik v. Bezio, 76 A.D.3d 1128, 1128, 908 N.Y.S.2d 138 [2010]; Matter of Reynoso v. Fischer, 73 A.D.3d 1315, 1316, 899 N.Y.S.2d 913 [2010] ). Therefore, we find no reason to disturb the determination of guilt.

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

PETERS, P.J., MERCURE, SPAIN, STEIN and McCARTHY, JJ., concur.