| Matter of Harvey v Woods |
| 2008 NY Slip Op 08367 [56 AD3d 829] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Miguel Harvey, Petitioner, v R.K. Woods,as Superintendent of Upstate Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
During a facility mail watch, a correction officer confiscated three letters written bypetitioner that contained prohibited organization-related references. As a result, petitioner wascharged in a misbehavior report with possessing unauthorized organizational materials andviolating facility correspondence rules. He was found guilty of the charges following a tier IIIdisciplinary hearing. After the determination was affirmed on administrative appeal, petitionercommenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with testimony of the correction officer whowrote it as well as the actual letters written by petitioner, support the determination of guilt (see Matter of Malloy v Goord, 50AD3d 1431 [2008]; Matter of Velez v Goord, 262 AD2d 906 [1999]). Petitioneradmitted to writing the letters. The letters violated facility correspondence rules in that theycontained material specifically intended for other inmates and expressly requested the addresseeto forward the material, and the absence of specific references to a prohibited organization doesnot undermine the sufficiency of the evidence supporting the [*2]determination given the testimony of the correction officer who waswell versed in identifying the terminology of prohibited organizations (see Matter of Sweat v Fischer, 52AD3d 1142, 1142 [2008]). Moreover, we find no error in the Hearing Officer's denial ofpetitioner's request to have respondent Superintendent of Upstate Correctional Facility testify atthe hearing inasmuch as he merely authorized the mail watch, and his testimony was irrelevant tothe charges at issue (see Matter of Mossv Goord, 36 AD3d 977, 978 [2007]; Matter of Flenon v Goord, 24 AD3d 912, 913 [2005], lvdenied 6 NY3d 710 [2006]). Lastly, there is no indication in the record that the HearingOfficer was biased or that the determination flowed from any alleged bias (see Matter of Sweet v Poole, 48 AD3d867, 868 [2008]).
Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.