Lebron v. Selsky

Appellate Division of the Supreme Court of New York

Lebron v. Selsky

53 A.D.3d 962, 861 N.Y.S.2d 522

Appellate Division of the Supreme Court of the State of New York·Decided July 24, 2008·Published·Cited by 1 cases

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating facility correspondence regulations. We now confirm.

The misbehavior report and confiscated mail, which demonstrate that petitioner’s wife sent a letter and photograph on his behalf to an inmate at another facility, comprise substantial evidence to support the determination of guilt (see Matter of Belot v Selsky, 47 AD3d 1149, 1149 [2008]). To the extent that petitioner asserted that his wife sent the mail without his direction, a credibility issue was created for resolution by the Hear[963]*963ing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007], lv denied 10 NY3d 702 [2008]). Regarding petitioner’s claim that the misbehavior report was deficient, although it did reference the incorrect subsections of the facility directive in question, it was sufficient as a whole to apprise petitioner of the charge against him and afford him the opportunity to prepare a defense (see Matter of Ross v Selsky, 49 AD3d 1065, 1065 [2008]).

Cardona, P.J., Carpinello, Rose, Lahtinen and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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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 a prison disciplinary rule.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating facility correspondence regulations. We now confirm.

The misbehavior report and confiscated mail, which demonstrate that petitioner’s wife sent a letter and photograph on his behalf to an inmate at another facility, comprise substantial evidence to support the determination of guilt (see Matter of Belot v Selsky, 47 AD3d 1149, 1149 [2008]). To the extent that petitioner asserted that his wife sent the mail without his direction, a credibility issue was created for resolution by the Hear[963]*963ing Officer (see Matter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007], lv denied 10 NY3d 702 [2008]). Regarding petitioner’s claim that the misbehavior report was deficient, although it did reference the incorrect subsections of the facility directive in question, it was sufficient as a whole to apprise petitioner of the charge against him and afford him the opportunity to prepare a defense (see Matter of Ross v Selsky, 49 AD3d 1065, 1065 [2008]).

Cardona, P.J., Carpinello, Rose, Lahtinen and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Lebron v. Selsky, 53 A.D.3d 962, 861 N.Y.S.2d 522 (N.Y. Ct. App. 2008).

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Opinion

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