| Matter of Tafari v Selsky |
| 2010 NY Slip Op 06727 [76 AD3d 1144] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Injah Tafari, Appellant, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 27, 2007 inAlbany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
Petitioner, a prison inmate, was served with a misbehavior report charging him with makingthreats, harassment and stalking based upon two letters he allegedly wrote to a female facilityemployee. Following a tier III disciplinary hearing, petitioner was found guilty of all charges.That determination was upheld on administrative appeal, after which petitioner commenced thisCPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petitionand petitioner now appeals.
Initially, we find that Supreme Court erred in dismissing the petition for failure to state acause of action.[FN*]Furthermore, inasmuch as the petition raised a question of substantial [*2]evidence, we will retain jurisdiction and render judgmentaccordingly (see CPLR 7804 [g]; Matter of Pettus v New York State Dept. of Correctional Servs., 73AD3d 1411, 1411 [2010]).
Turning to the merits of the petition, the misbehavior report, the testimony of the employeewho received the letters, copies of the letters and petitioner's admission that he was the authorprovide substantial evidence to support the determination of guilt (see Matter of Pettus v NewYork State Dept. of Correctional Servs., 73 AD3d at 1411; Matter of Cornwall v Fischer, 73 AD3d1367 [2010]). Furthermore, there is no merit to petitioner's argument that the HearingOfficer improperly denied a requested witness. The record demonstrates, rather, that the hearingwas adjourned twice in an attempt to find the civilian witness, but the Inspector General wasunable to locate him at either address provided by petitioner. We find that reasonable efforts weremade to locate petitioner's witness and, thus, his due process rights were not violated (see Matter of Davila v Selsky, 48AD3d 846, 847 [2008]; Matter ofFolk v Goord, 29 AD3d 1182, 1182-1183 [2006]).
We have examined petitioner's remaining claims and find them to be without merit.
Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Petitioner here sought tochallenge the determination against him as being arbitrary and capricious. Giving the petition aliberal construction, as we are required to do (see Murray v Reif, 36 AD3d 1167, 1168 [2007]; Henness vHunt, 272 AD2d 756, 756 [2000]), we find that petitioner, albeit inartfully, raised a questionof substantial evidence.