Matter of Rosario v Fischer

Matter of Matter of Rosario v Fischer 2012 NY Slip Op 03913 Decided on May 17, 2012 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: May 17, 2012
513175

[*1]In the Matter of WILFREDO ROSARIO, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: April 4, 2012
Before: Peters, P.J., Rose, Malone Jr., McCarthy and Garry, JJ.


Wilfredo Rosario, Rome, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff 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 Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After returning from court, petitioner refused a correction officer's directive to report to a program. Consequently, he was charged in a misbehavior report with refusing a direct order and failing to accept a program assignment. He was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the charge of failing to accept a program assignment was dismissed, but the remainder of the determination was upheld. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt (see Matter of Lineberger v Bezio, 89 AD3d 1293, 1294 [2011], appeal dismissed ___ NY3d ___ [May 8, 2012]; Matter of Cruz v Walsh, 87 AD3d 1234, 1234 [2011]). Petitioner's further claim that the Hearing Officer did not provide him with an adequate statement of evidence relied upon has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]). [*2]

Peters, P.J., Rose, Malone Jr., McCarthy and Garry, JJ., concur.

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