Robinson v. Selsky

43 A.D.3d 529, 840 N.Y.S.2d 230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 2007
• Status: Published

Opinion

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

Petitioner sent a letter to the deputy superintendent of programs at the correctional facility where he was incarcerated complaining about a correction counselor and comparing him to a former supervisor whom he had murdered. As a result, petitioner was charged in a misbehavior report with making threats and was found guilty of the charge following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the letter and petitioner’s admission that he authored the letter, provide substantial evidence supporting the determination of guilt (see Matter of Alston v Goord, 25 AD3d 852, 852 [2006]; Matter of Jones v Department of Correctional Servs. of State of N.Y., 283 AD2d 805, 805 [2001]). Petitioner’s assertion that the letter was misinterpreted presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v Goord, supra at 852; Matter of McFadden v Armmitage, 1 AD3d 670, 670-671 [2003]). His claim of Hearing Officer bias has not been preserved for our review.

Spain, J.R, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.