Matter of Sweat v Fischer

2008 NY Slip Op 05849

Decided on June 26, 2008

Appellate Division, Third Department

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

Decided and Entered: June 26, 2008
503898



Calendar Date: May 14, 2008
Before: Cardona, P.J., Mercure, Carpinello, Rose and Malone Jr., JJ.


Ronell Sweat, Pine City, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After a letter authored by petitioner containing gang-related references was found in another inmate's cell, petitioner was charged in a misbehavior report with violating the prison disciplinary rule that prohibits the distribution or use of unauthorized organizational materials. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. Petitioner's administrative appeal proved unsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 to challenge respondent's determination.

The misbehavior report, the testimony of the authoring correction officer, who was trained in the identification of gang-related materials, together with the confiscated letter and the admitted exemplar of petitioner's handwriting, provide substantial evidence of petitioner's guilt (see Matter of Parks v Smith, 49 AD3d 1123 [2008]; Matter of Jenkins v Goord, 30 AD3d 719, 720 [2006]). The Hearing Officer, as the trier of fact, was qualified to compare the letter to the sample of petitioner's handwriting (see Matter of Hood v Goord, 36 AD3d 1064, 1065 [2007]; Matter of Johnson v Coombe, 271 AD2d 780, 780-781 [2000]) and, contrary to petitioner's assertion, we are satisfied that the Hearing Officer made an independent assessment of those [*2]materials. Inasmuch as petitioner was afforded ample opportunity to review the subject letter at the hearing, we perceive no violation of petitioner's due process rights (see Matter of Curtis v Coombe, 234 AD2d 752, 753 [1996]). Finally, the record does not support petitioner's assertion that the Hearing Officer was biased or that the underlying determination flowed from any alleged bias (see Matter of Zaire v Artus, 49 AD3d 945, 946 [2008]).

Cardona, P.J., Mercure, Carpinello, Rose and Malone Jr., JJ., concur.

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