Reid v. Selsky

43 A.D.3d 1258, 842 N.Y.S.2d 113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2007
• Status: Published

Opinion

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

Petitioner was charged in a misbehavior report with making threats and harassment after he sent to the Commissioner of Correctional Services a letter containing offensive and obscene references. Following a tier III disciplinary hearing, he was found guilty of both charges. That determination was affirmed on administrative appeal with a modified penalty, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report, subject correspondence, corroborating hearing testimony and petitioner’s own admission that he authored and sent the letter constitute substantial evidence to support the determination of guilt (see Matter of Canzater-Smith v Selsky, 28 AD3d 899, 900 [2006]). To the extent that petitioner offered an innocent explanation regarding the content of the letter and a retaliation defense, credibility issues were created for resolution by the Hearing Officer (see Matter of Rizzuto v Goord, 35 AD3d 1075, 1075 [2006]). Contrary to petitioner’s assertion, the offending references were not protected expressions under the 1st Amendment of the US Constitution (see Matter of Jones v Department of Correctional Servs. of State of N.Y., 283 AD2d 805, 805-806 [2001]). Petitioner’s remaining contentions have been examined and found to be unpersuasive.

Mercure, J.E, Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.