IN RE: Jeffery HAMM

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Supreme Court, Appellate Division, Third Department, New York.


Decided: December 29, 2005

Before:  MERCURE, J.P., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Jeffery Hamm, Rome, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

When he was unable to produce his state identification card for a correction officer, petitioner was pat frisked and found to be in possession of one half of a pill which he claimed was a muscle relaxer.   Thereafter, petitioner's cell was searched and a correction officer recovered an outdated prescription packet, as well as an empty soda can filled with ashes and cigarette butts.   Petitioner was charged in a misbehavior report with failing to carry his state identification card, possessing outdated medication and failing to smoke in designated areas.   He was found guilty of these charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 Initially, petitioner's plea of guilty to the charge of failing to carry his state identification card precludes him from challenging the sufficiency of the evidence upon which it is based (see Matter of Lopez v. Goord, 20 A.D.3d 836, 836, 798 N.Y.S.2d 700 [2005];  Matter of Harrison v. Selsky, 2 A.D.3d 1232, 1233, 768 N.Y.S.2d 856 [2003] ).   As for the other charges, the misbehavior report, together with the testimony of the correction officer who prepared it, constitute substantial evidence supporting the determination of guilt (see Matter of Carrington v. Goord, 20 A.D.3d 835, 835, 798 N.Y.S.2d 700 [2005];  Matter of Valentine v. Goord, 18 A.D.3d 997, 998, 794 N.Y.S.2d 692 [2005], lv. dismissed 5 N.Y.3d 816, 803 N.Y.S.2d 24, 836 N.E.2d 1146 [2005] ).   Petitioner's remaining claims are not preserved for our review as they were not raised at the hearing or on administrative review (see Matter of Quezada v. Goord, 19 A.D.3d 964, 965, 797 N.Y.S.2d 323 [2005] ).

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

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