Wright v. Goord

19 A.D.3d 855, 797 N.Y.S.2d 167, 2005 N.Y. App. Div. LEXIS 6754

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.

After an envelope purporting to be legal mail was returned as undeliverable to the correctional facility where petitioner was housed, a correction officer opened it and discovered two packets of tobacco and rolling papers inside. As a result, petitioner was charged in a misbehavior report with smuggling and violating facility correspondence procedures. He was found guilty of both charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

The misbehavior report was authored by the correction officer who opened the envelope, which bore petitioner’s DIN number and his return address at a different correctional facility, and who observed the tobacco and rolling papers inside. The report alone provided substantial evidence supporting the determination of guilt under the circumstances presented (see Matter of Alejandro v Goord, 278 AD2d 731 [2000]; Matter of Daum v Goord, 274 AD2d 715, 716 [2000]). Based upon the report, the Hearing Officer could reasonably conclude that petitioner sent the letter to himself. Petitioner’s exculpatory testimony presented an issue of credibility for the Hearing Officer to resolve (see Matter of Jackson v Goord, 8 AD3d 852, 853 [2004]). Contrary to petitioner’s claim, there was no impropriety in the designation of the food service administrator to act as the Hearing Officer (see 7 NYCRR 254.1). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

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