IN RE: Vincent DECASTRO

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

IN RE: Vincent DECASTRO, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: May 28, 2009

Before:  MERCURE, J.P., LAHTINEN, KANE, STEIN and McCARTHY, JJ. Vincent Decastro, Marcy, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu 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.

Petitioner was charged in a misbehavior report with violating temporary release rules and facility correspondence procedures.   A tier III disciplinary hearing ensued, at which petitioner pleaded guilty to the charges and raised an objection as to the timeliness of the misbehavior report.   Petitioner was found guilty of all charges and a penalty was imposed.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to challenge the determination of guilt.

 Preliminarily, “[p]etitioner's guilty plea precludes any evidentiary challenge to the underlying determination” (Matter of Johnson v. Department of Correctional Servs., 53 A.D.3d 746, 747, 862 N.Y.S.2d 618 [2008];  see Matter of Wilson v. Dubray, 54 A.D.3d 1089, 1090, 866 N.Y.S.2d 367 [2008] ).   As for the timeliness of the misbehavior report, the relevant regulation requires only that the report be written “ ‘as soon as practicable’ after the events that gave rise to it” (Matter of Presley v. Miller, 306 A.D.2d 707, 707, 760 N.Y.S.2d 692, quoting 7 NYCRR 251-3.1[a] ).   Here, although the misbehavior report indeed was written approximately 40 days after the underlying event, petitioner's own testimony demonstrates that the report was issued only one week after he was interviewed by a correction sergeant regarding this incident and provided a written statement in conjunction therewith.   Inasmuch as the report was issued at the conclusion of an ongoing investigation into petitioner's conduct, we reject his claim that it was not tendered in a timely manner (see Matter of Reed v. Goord, 16 A.D.3d 796, 790 N.Y.S.2d 770 [2005];  Matter of Presley v. Miller, supra;  Matter of Schultz v. Goord, 301 A.D.2d 764, 764-765, 753 N.Y.S.2d 223 [2003] ).   Finally, to the extent that petitioner challenges his apparent removal from a temporary release program, we need note only that such decision was the product of a separate administrative determination that is not before this Court for review (see Matter of Brown v. Goord, 290 A.D.2d 901, 902, 737 N.Y.S.2d 166 [2002];  see also Matter of Johnson v. Department of Correctional Servs., 53 A.D.3d at 747, 862 N.Y.S.2d 618).

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

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