In the Matter of SCOTT v NEW YORK STATE DEPARTMENT OF CORRECTIONS

Decided and Entered: May 5, 2005 96391 ________________________________ In the Matter of MICHAEL SCOTT, Petitioner, v MEMORANDUM AND JUDGMENT NEW YORK STATE DEPARTMENT OF CORRECTIONS, Respondent. ________________________________ Calendar Date: April 13, 2005 Before: Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ. __________ Michael Scott, Romulus, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent. __________ 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit fighting and assaulting another inmate. The charges stem from an altercation between petitioner and his cellmate assistant wherein petitioner used the footrest of his wheelchair to hit his cellmate on the wrist. On administrative appeal the determination was modified to the extent of dismissing the charge of fighting. Petitioner commenced this CPLR article 78 proceeding challenging the determination. Initially, we note that petitioner’s plea of guilty with an explanation to the charge of assaulting another inmate precludes any challenge to the determination as not supported by substantial evidence (see Matter of Cendales v Goord, 305 AD2d 824 [2003]; Matter of Anderson v Goord, 262 AD2d 896 [1999]). In any event, the misbehavior report, testimony at the hearing and petitioner’s own admissions provide substantial evidence to support the determination (see Matter of Jones v Goord, 274 AD2d 902, 903 [2000]; Matter of Anderson v Goord, supra). Furthermore, the record belies petitioner’s contention that the Hearing Officer was biased or ignored petitioner’s justification defense. Petitioner’s remaining contentions, having not been raised at the administrative hearing, are not preserved for our review (see Matter of Lopez v Goord, 14 AD3d 771 [2005]). Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed.