| Matter of Reid v Selsky |
| 2007 NY Slip Op 07043 [43 AD3d 1258] |
| September 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Cedric Reid, Petitioner, 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.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with making threats and harassment after hesent to the Commissioner of Correctional Services a letter containing offensive and obscenereferences. Following a tier III disciplinary hearing, he was found guilty of both charges. Thatdetermination was affirmed on administrative appeal with a modified penalty, promptingpetitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, subject correspondence, corroborating hearingtestimony and petitioner's own admission that he authored and sent the letter constitutesubstantial 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 letterand a retaliation defense, credibility issues were created for resolution by the Hearing Officer (see Matter of Rizzuto v Goord, 35AD3d 1075, 1075 [2006]). Contrary to petitioner's assertion, the offending references werenot protected expressions under the 1st Amendment of the US Constitution (see Matter ofJones v Department of Correctional [*2]Servs. of State ofN.Y., 283 AD2d 805, 805-806 [2001]). Petitioner's remaining contentions have beenexamined and found to be unpersuasive.
Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.