| Matter of Mills v Fischer |
| 2009 NY Slip Op 06613 [65 AD3d 1427] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Mills, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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.
Based upon an allegation that petitioner sent a sexually explicit letter to a nurse at thecorrectional facility where he was incarcerated, he was charged in a misbehavior report withengaging in harassment, making threats, committing a sexual offense and violating facilitycorrespondence procedures. Petitioner was found guilty of the charges following a tier IIIdisciplinary hearing and the determination was later affirmed on administrative appeal. ThisCPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the letter and the samples of petitioner'shandwriting that were found in his cell, provide substantial evidence supporting thedetermination of guilt (see Matter ofMoore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 [2008]; Matter of Kornegay v Goord, 21 AD3d1236, 1237 [2005]). "Contrary to petitioner's contention, expert handwriting analysistestimony was not required as the independent assessment of the writing samples by the HearingOfficer was sufficient" (Matter of Moore v New York State Dept. of Correctional Servs.,50 AD3d at 1351 [citations omitted]). Petitioner's denial of the charges and claim that he was setup presented a credibility issue for the Hearing Officer to resolve (see Matter of Grof vGoord, 278 AD2d 650 [2000]). Therefore, we [*2]find nobasis to disturb the determination of guilt.
Cardona P.J., Spain, Kane, Stein and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.