Fogan v. Goord

45 A.D.3d 1012, 845 N.Y.S.2d 531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 2007
• Status: Published

Opinion

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.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules prohibiting solicitation of services and violation of facility correspondence procedures. We confirm. The misbehavior report containing a specific account of the incident written by the investigating correction officer, testimony of the correction officer and the subject letter provide substantial evidence supporting the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Goncalves v Donnelly, 9 AD3d 721 [2004]).

Petitioner’s procedural objections are unpersuasive. The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]). There is no merit to petitioner’s claim that his letter was improperly inspected, as all business mail is subject to inspection (7 3MYCRR 720.7 [d]). Contrary to petitioner’s contention that the misbehavior report inadequately described the charge, the report provided petitioner with the detail necessary to prepare a defense (see Matter of Smith v Portuondo, 309 AD2d 1028 [2003]). Petitioner’s remaining claims lack merit.

Mercare, J.P., Peters, Spain, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.