Supreme Court, Appellate Division, Third Department, New York.
IN RE: Shytique KELLY, Petitioner, v. A. RODRIGUEZ, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Decided: November 08, 2018
Before: McCarthy, J.P., Egan Jr., Lynch, Aarons and Pritzker, JJ.
Shytique Kelly, Attica, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Victor Paladino 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation that involved the monitoring of petitioner's telephone calls, correction officials discovered that petitioner was enlisting his wife to bring drugs into the correctional facility during visits to the facility and that he was also using the telephone system to make third-party telephone calls. As a result, he was charged in a misbehavior report with conspiring to introduce drugs into the correctional facility, soliciting another to smuggle contraband, violating facility visiting room procedures and making third-party telephone calls. Petitioner was found guilty of the charges following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.
We confirm. Initially, insofar as petitioner pleaded guilty to making third-party telephone calls, he is precluded from challenging the sufficiency of the evidence supporting that part of the determination finding him guilty of this charge (see Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1184, 70 N.Y.S.3d 587 ; Matter of Sierra v. Venettozzi, 153 A.D.3d 1548, 1549, 60 N.Y.S.3d 702  ). As for the remaining charges, the misbehavior report, together with the testimony of its author who conducted the investigation and the transcribed portions of the taped telephone conversations, provide substantial evidence supporting the determination of guilt (see Matter of Harrison v. Fischer, 104 A.D.3d 1032, 1032, 960 N.Y.S.2d 749 ; Matter of Matthews v. Fischer, 95 A.D.3d 1529, 1530, 944 N.Y.S.2d 681  ). Contrary to petitioner's claim, we do not find that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Safford v. Annucci, 144 A.D.3d 1271, 1272–1273, 46 N.Y.S.3d 226 , lv denied 29 N.Y.3d 901, 2017 WL 1094364 ; Matter of Cognata v. Fischer, 85 A.D.3d 1456, 1457, 925 N.Y.S.2d 725  ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Egan Jr., Lynch, Aarons and Pritzker, JJ., concur.
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