Matter of Koehl v Fischer

2008 NY Slip Op 05606

Decided on June 19, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 19, 2008
503398



Calendar Date: May 14, 2008
Before: Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ.


Edward Koehl, Dannemora, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter
H. Schiff of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule that prohibits harassment after it was determined that he wrote a threatening and obscene letter to the chairperson of the Committee on Professional Standards for the Third Judicial Department. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the hearing testimony and the offending letter, along with exemplars of petitioner's handwriting, provide substantial evidence to support the determination of guilt (see Matter of Moore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 [2008]; Matter of Hood v Goord, 36 AD3d 1064, 1065 [2007]). Petitioner's claim that he did not author the letter presented a credibility issue for the Hearing Officer to resolve (see Matter of Hood v Goord, 36 AD3d at 1065). Contrary to petitioner's contention, the content of the letter which contains violent, threatening and obscene language directed at the recipient and his family does not constitute protected speech under the 1st Amendment of the US Constitution (see Matter of Reid v Selsky, 43 AD3d 1258, 1258-1259 [2007]; Matter of [*2]Jones v Department of Correctional Servs. of State of N.Y., 283 AD2d 805, 805-806 [2001]). Nor are we convinced that petitioner was improperly denied access to various documents in that the materials he requested were either confidential or not available (see Matter of Lebron v Artus, 48 AD3d 993 [2008], lv denied 10 NY3d 709 [2008]; Matter of Davis v Goord, 21 AD3d 606, 608 [2005], lv denied 5 NY3d 861 [2005]; Matter of Knight v Selsky, 20 AD3d 852, 853 [2005]).

To the extent preserved, petitioner's remaining contentions, including his claims that he was denied effective employee assistance and the misbehavior report was written in retaliation for a grievance he filed, have been reviewed and found to be without merit.

Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.