Matter of Pequero v Annucci

Matter of Pequero v Annucci 2017 NY Slip Op 08569 Decided on December 7, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 7, 2017
524445

[*1]In the Matter of RAMON PEQUERO, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: October 24, 2017
Before: McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ.

Ramon Pequero, petitioner pro se.

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

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possessing contraband and possessing an authorized item in an unauthorized area stemming from a fellow inmate handing petitioner eight sugar packets through petitioner's cell bars. Following a tier II disciplinary hearing, petitioner was found guilty of both charges based upon the misbehavior report and his pleas of guilty. Other than a modification of the penalty imposed, the determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78

proceeding.

We confirm. In light of petitioner's pleas of guilty to both charges, admitting that he had asked an inmate to bring him sugar when returning from "chow" and that he, without permission, stuck his hands out of the gate to accept the sugar, petitioner is precluded from challenging the determination of guilt (see Matter of Clarke v Venettozzi, 139 AD3d 1221, 1221 [2016]; Matter of Abrahams v Annucci, 134 AD3d 1368, 1369 [2015]). There is no indication in the record that his guilty pleas were coerced or otherwise not knowing, voluntary and intelligent (see Matter of Simpson v Annucci, 134 AD3d 1264, 1264 [2015], lv denied 27 NY3d 908 [2016]; Matter of Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]). Further, the record fails to support petitioner's [*2]contention that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Freeman v Annucci, 151 AD3d 1509, 1511 [2017]; Matter of Mays v Cunningham, 140 AD3d 1511, 1512 [2016]). We have reviewed petitioner's remaining contentions, including that the misbehavior report did not warrant a tier II designation and that the penalty was severe, and find them either unpreserved or without merit (see Matter of Headley v Annucci, 150 AD3d 1513, 1514 [2017]).

McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ., concur.

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