| Matter of Garraway v Fischer |
| 2010 NY Slip Op 01038 [70 AD3d 1153] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony M. Garraway, Appellant, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered March 26, 2009 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding petitioner guilty of violating a prisondisciplinary rule.
Petitioner was charged in a misbehavior report with making threats after he wrote athreatening letter to Broome County Child Protective Services concerning the manner in whichthat office had investigated allegations that his son had been abused by the child's stepfather.Following a tier III disciplinary hearing, petitioner was found guilty as charged. Thisdetermination was affirmed on administrative appeal, with a modified penalty. FollowingSupreme Court's dismissal of petitioner's CPLR article 78 proceeding, this appealensued.[FN*][*2]
Initially, we find that the misbehavior report, togetherwith the letter containing the threatening language and petitioner's admission that he wrote theletter, provide substantial evidence supporting the determination of guilt (see Matter ofOdom v Selsky, 58 AD3d 1060, 1061 [2009]; Matter of Sloane v McKinney, 48 AD3d 850, 850 [2008]).Moreover, the misbehavior report was sufficiently detailed to apprise petitioner of the chargeagainst him and afford him an opportunity to prepare a defense (see Matter of Arnold v Fischer, 60AD3d 1177, 1177 [2009]). We note that, although petitioner was apparently not shown acopy of the letter until his hearing, where it was read into the record, he has not demonstratedthat he was prejudiced thereby in his ability to defend himself (see Matter of Odom vSelsky, 58 AD3d at 1061).
Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.
Footnote *: We note that, inasmuch as theCPLR article 78 petition raises a question of substantial evidence, the proceeding should havebeen initially transferred to this Court. We therefore consider the issue de novo and renderjudgment accordingly (see Matter ofParkinson v Selsky, 45 AD3d 1079, 1080 [2007]).