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

IN RE: James B. McMOORE, Petitioner, v. Norman BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: November 19, 2009

Before:  MERCURE, J.P., LAHTINEN, KANE, STEIN and McCARTHY, JJ. James B. McMoore, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting soliciting and smuggling.   The charges stemmed from the discovery of letters written by petitioner requesting other inmates to provide him with stamps, which he was not allowed to have at that time due to a prior rule violation.   At a tier III disciplinary hearing, petitioner was found guilty as charged based upon his plea of guilty with an explanation to both charges.   This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

 We confirm.   Initially, petitioner is precluded from challenging the determination of guilt by his plea of guilty with an explanation to both charges (see Matter of Dancy v. Goord, 58 A.D.3d 922, 923, 869 N.Y.S.2d 806 [2009];  Matter of Spencer v. Goord, 38 A.D.3d 1028, 1028, 833 N.Y.S.2d 255 [2007], lv. denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ).   Furthermore, petitioner's contention that he was improperly denied the right to call the author of the misbehavior report as a witness at the disciplinary hearing is without merit.   Petitioner was given an opportunity to adjourn the hearing until that officer was available, and petitioner specifically waived his request to have him testify (see Matter of Davis v. Prack, 63 A.D.3d 1457, 1458, 884 N.Y.S.2d 269 [2009] ).

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

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