| Matter of Anderson v Fischer |
| 2009 NY Slip Op 05224 [63 AD3d 1462] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jerome Anderson, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
A parole officer searched the apartment of a former inmate and found a letter authored bypetitioner in which he solicited the inmate's assistance in a planned escape from the correctionalfacility where he was confined. As a result, petitioner was charged in a misbehavior report withconspiracy to escape. He was found guilty of the charge following a tier III disciplinary hearingand the determination was upheld on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, letter that was admittedly authored by petitioner andthe testimony adduced at the hearing provide substantial evidence supporting the determinationof guilt (see Matter of Knight vMcGinnis, 10 AD3d 754, 755 [2004]; Matter of Velez v Goord, 262 AD2d 906[1999]). Contrary to petitioner's claim, he was not improperly denied the right to call either theparole officer or the former inmate as witnesses at the hearing. Given that the parole officer didnot decipher the letter, but merely turned it over to correction officials, his testimony would havebeen irrelevant to the charge (see Matterof McKinley v Goord, 47 AD3d 974, 974 [2008]; Matter of Burgos-Morales v Goord, 22 AD3d 999, 1000 [2005]).As for the former inmate, the Hearing Officer did not refuse him as a witness but rather [*2]made numerous attempts to contact him, all to no avail. Likewise,even though petitioner was not provided with a copy of the letter, he was not denieddocumentary evidence inasmuch as the Hearing Officer afforded him the opportunity to review itat the hearing (see Matter of Harrison vFischer, 56 AD3d 917 [2008]). Petitioner's remaining contentions have been reviewedand are lacking in merit.
Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.