Matter of Julio I. Smith v Glenn S. Goord

Matter of Smith v Goord 2005 NY Slip Op 06705 [21 AD3d 1152] September 15, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 16, 2005

In the Matter of Julio I. Smith, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating the prison disciplinary rules that prohibit fighting, violent conduct, refusing a direct order, possession of weapons and tampering with an electrical device. Initially, petitioner is precluded from challenging the determination finding him guilty of fighting and tampering with an electrical device insofar as he pleaded guilty to these charges (see Matter of Lopez v Goord, 20 AD3d 836, 836 [2005]; Matter of Lebron v McGinnis, 20 AD3d 793, 793 [2005]). As to the balance of the determination, the two misbehavior reports and the testimony at the hearing provide substantial evidence of petitioner's guilt (see Matter of Barca v Goord, 19 AD3d 772, 773 [2005]; Matter of Shell v Superintendent of Oneida Correctional Facility, 18 AD3d 1044, 1044 [2005]). Petitioner's contention that the determination was the result of bias on the part of the Hearing Officer and/or a conspiracy by the correction officers is unsupported by the record (see Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]; Matter of Odome v Goord, 14 AD3d 975, 976 [2005]). To the extent that they were preserved, petitioner's remaining contentions have been reviewed and found to be without merit. [*2]

Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.