Sullivan v. Fischer

• Decision Date: 17 May 2012
• Citation: 2012 N.Y. Slip Op. 03901,944 N.Y.S.2d 677,95 A.D.3d 1514
• Parties: In the Matter of Charles SULLIVAN, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1514
944 N.Y.S.2d 677
2012 N.Y. Slip Op. 03901

In the Matter of Charles SULLIVAN, Petitioner,
v.
Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

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

May 17, 2012.

[944 N.Y.S.2d 678]

Charles Sullivan, Buffalo, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, MALONE JR., STEIN and EGAN JR., JJ.

[95 A.D.3d 1514]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 lengthy investigation, correction officers discovered that petitioner was using the inmate telephone system and correspondence to solicit his brother, his girlfriend and a facility cook to bring marihuana into the correctional facility for distribution[95 A.D.3d 1515]. As a result, petitioner was charged in a misbehavior report with making three-way calls, possessing personal information of an employee, conspiring to possess drugs, smuggling and violating facility correspondence procedures. Petitioner pleaded guilty to making three-way calls and, following a tier III disciplinary hearing, was found guilty of all charges. The determination was affirmed upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to making three-way calls, he is precluded from challenging the determination with respect to this charge ( see Matter of Kae v. Bezio, 79 A.D.3d 1496, 1497, 913 N.Y.S.2d 409 [2010];Matter of Frazier v. Prack, 62 A.D.3d 1185, 1185, 880 N.Y.S.2d 718 [2009] ). As for the remaining charges, the misbehavior report, testimony of the investigator who prepared it and the confidential testimony and documents considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt as to these charges ( see Matter of Boyle v. Fischer, 89 A.D.3d 1268, 932 N.Y.S.2d 389 [2011];Matter of Taylor v. Fischer, 74 A.D.3d 1677, 1677, 906 N.Y.S.2d 112 [2010] ). Although petitioner denied any involvement in bringing drugs into the facility, as did the witnesses he called to testify upon his

[944 N.Y.S.2d 679]

behalf, this presented a credibility issue for the Hearing Officer to...