Lamere v. Fischer

Aug 4, 2011
Versions:87 A.D.3d 768
927 N.Y.2d 803

Petitioner was charged in a misbehavior report with stalking, making threats and violating facility correspondence procedures in connection with a letter written by him to the victim of the offense for which he is currently incarcerated. Following a tier III disciplinary hearing, petitioner was found guilty of all three charges and was penalized with six months in the special housing unit, 24 months loss of correspondence privileges and 12 months loss of good time. On administrative appeal, the determination and penalty were upheld. Petitioner thereafter commenced this CPLR article 78 proceeding.

Initially, inasmuch as petitioner pleaded guilty to the charges of making threats and violating facility correspondence procedures, he is precluded from challenging the determination of guilt with regard to those charges (see Matter of Anthony v Fischer, 81 AD3d 1027, 1027 [2011]; Matter of Surdis v Walsh, 301 AD2d 900 [2003]). The misbehavior report, supporting documentation and confidential documents, as well as petitioner‘s own admission that he authored the subject letter, provide substantial evidence supporting the determination of guilt on the charge of stalking (see Matter of Anthony v Fischer, 81 AD3d at 1027; Matter of Davis v Fischer, 76 AD3d 1154, 1155 [2010]; Matter of Devaughn v Bezio, 75 AD3d 673, 673-674 [2010]). Given the violent nature of the threats made and that they were lodged against the victim of petitioner‘s current offense within months of his tentative release date, we are not persuaded by petitioner‘s contention that the penalty imposed was excessive (see Matter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Roussopoulas v Cunningham, 76 AD3d 730, 731 [2010]; Matter of Griswold v Goord, 39 AD3d 908, 909 [2007]). We have considered petitioner‘s remaining arguments and find them to be either unpreserved or without merit.

Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.