| Matter of Pertillar v Fischer |
| 2009 NY Slip Op 05900 [64 AD3d 1029] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Johnny Pertillar, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was served with a misbehavior report based upon his possession of aninvestigative memorandum that had been prepared by facility staff pertaining to one of his pastgrievances. The memorandum had been supplied to petitioner by another inmate who worked inthe facility's grievance office. The misbehavior report charged petitioner with extortion, stealing,possession of stolen documents and unauthorized possession of a facility document. Following atier III disciplinary hearing, petitioner was found not guilty of extortion and guilty of the threeremaining charges. Upon administrative appeal, respondent reversed that part of thedetermination that found petitioner guilty of stealing and reduced the assessed penaltiesaccordingly. Petitioner then commenced this CPLR article 78 proceeding, seeking to challengethat part of respondent's determination that affirmed the remainder of the Hearing Officer'sfindings.
Initially, we find that the misbehavior report, related documentation and hearing testimony,including petitioner's admission that he possessed the documents alleged, provide substantialevidence to support the determination of guilt (see Matter of Reynoso v Fischer, 55[*2]AD3d 1201 [2008], appeal dismissed 11 NY3d 916[2009]; Matter of Garner v Selsky,47 AD3d 1167, 1168 [2008]). Petitioner's contention that he did not know that he was inviolation of the rules for having possessed the investigative report appears to be based on theassertion that the pertinent regulation is vague and unclear. However, we find that it isundisputed that the investigative memorandum is a "departmental document" and that petitionerwas not authorized to have it in his possession (see 7 NYCRR 270.2 [B] [17] [iii]).Furthermore, we find that the determination that petitioner was in possession of stolen propertyis supported by the fact that he received the report from another inmate, who petitioneracknowledged had been punished for having supplied the information (see 7 NYCRR270.2 [B] [17] [iv]). Thus, petitioner's professed ignorance that this rule covered the document inhis possession does not absolve him from guilt (see Matter of Hughes v Goord, 300AD2d 789, 790 [2002]). Finally, petitioner's contention that he received the misbehavior reportin retaliation for the filing of past grievances presented a credibility issue for the Hearing Officerto resolve (see Matter of Washington vNapoli, 61 AD3d 1243, 1243 [2009]; Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]).
Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.