State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 6, 2014 518443 

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In the Matter of DONALD 

ROBINSON,

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections 

and Community Supervision,

Respondent.

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Calendar Date: September 16, 2014

Before: Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Donald Robinson, Comstock, petitioner pro se.

Eric T. Schneiderman, 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 Sullivan County)

to review a determination of respondent which found petitioner

guilty of violating certain prison disciplinary rules.

Upon the discovery of various items during a search of his

prison cell, which included tobacco that had been received in a

package by another inmate, petitioner was charged in a

misbehavior report with smuggling, unauthorized exchange,

possession of an altered item, possession in an unauthorized

area, possession of contraband and providing unauthorized legal

assistance. Subsequently, based upon an interview with another

inmate who alleged that he had performed oral sex on petitioner

in exchange for protection and food, petitioner was charged in a
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second misbehavior report with engaging in a sexual act and

unauthorized exchange. During a tier III disciplinary hearing

addressing both misbehavior reports, petitioner pleaded guilty to

all of the charges in the first report except providing

unauthorized legal assistance. At the conclusion of the hearing,

he was found guilty of the remaining charges and that

determination was affirmed upon administrative appeal. 

Petitioner thereafter commenced this CPLR article 78 proceeding.

With respect to the first misbehavior report, petitioner

is precluded from challenging the finding of guilt with respect

to those charges to which he pleaded guilty (see Matter of

Flemming v Rock, 112 AD3d 1259, 1260 [2013], lv denied 22 NY3d

863 [2014]). Further he has abandoned any challenge to the

finding of guilt with respect to providing unauthorized legal

assistance by his failure to advance such in his brief (see

Matter of Harding v Prack, 118 AD3d 1231, 1232 [2014]).

Turning to the second misbehavior report, respondent

concedes, and we agree, that the part of the determination

finding petitioner guilty of unauthorized exchange is not

supported by the record and, therefore, the determination must be

annulled to that extent. However, petitioner has served the

penalty and no loss of good time was recommended and, therefore,

the matter need not be remitted (see Matter of Fulmore v Prack,

116 AD3d 1281, 1282 [2014]; Matter of Page v Lee, 116 AD3d 1275,

1275 [2014]). However, with regard to the charge of engaging in

a sexual act, the detailed misbehavior report itself along with

the supporting documentation provide substantial evidence to

support the determination of guilt. Petitioner failed to

preserve his procedural objections, namely, that the misbehavior

report was deficient and that he was denied the right to call a

witness, by his failure to raise these issues at the hearing (see

Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]; Matter of

Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).

Stein, J.P., Garry, Rose, Lynch and Devine, JJ., concur.
-3- 518443 

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

unauthorized exchange; petition granted to that extent and

respondent is directed to expunge all references to this charge

from petitioner's institutional record; and, as so modified,

confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court