Logan v. Fischer

109 A.D.3d 1043, 971 N.Y.S.2d 484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2013
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with making false or misleading statements, impersonation, violating correspondence procedures, making a false alarm and harassment after an investigation revealed that he wrote a letter to the Inspector General’s office reporting a false threat against a correction officer using another inmate’s name and also submitted a grievance under that inmate’s name. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, confidential testimony, the hearing testimony of the investigator, copies of the letter and the grievance, and exemplars of petitioner’s handwriting provide substantial evidence supporting the determination of guilt (see Matter of Collins v Fischer, 89 AD3d 1355,1356 [2011], lv denied 19 NY3d 803 [2012]; Matter of Povataj v Bezio, 84 AD3d 1658, 1659 [2011], lv denied 17 NY3d 709 [2011]). Notably, as the trier of fact, the Hearing Officer was qualified to make an independent assessment of the handwriting samples (see Matter of Collins v Fischer, 89 AD3d at 1356; Matter of Davis v Fischer, 76 AD3d 1154, 1155 [2010]). Based upon our review of the record, the determination of guilt will not be disturbed.

Rose, J.E, Stein, Spain and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.