Riggsbee v. Fischer

Aug 6, 2009
Versions:65 A.D.3d 729
882 N.Y.S.2d 924

In the Matter of TREMAYNE RIGGSBEE, Petitioner, v BRIAN FISCHER, as Commissioner of Correctional Services, Respondent. [882 NYS2d 924]—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.

Petitioner, a prison inmate, was charged in a misbehavior report with engaging in violent conduct, fighting and possessing a weapon. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to engaging in violent conduct and fighting but not guilty to possessing a weapon. A Hearing Officer thereafter found petitioner guilty of the first two violations and not guilty of the third, and imposed a penalty. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 raising both evidentiary and procedural challenges.

“Preliminarily, ‘[p]etitioner‘s guilty plea precludes any evidentiary challenge to the underlying determination’ (Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009], quoting Matter of Johnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]). “Similarly, petitioner‘s failure to raise any of his present procedural . . . claims at the disciplinary hearing renders those issues unpreserved for our review” (Matter of Johnson v Department of Correctional Servs., 53 AD3d at 747 [citations omitted]; see Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]; Matter of Tafari v Selsky, 41 AD3d 1117 [2007], lv denied 9 NY3d 809 [2007]).

Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.