| Matter of Hernandez v Fischer |
| 2009 NY Slip Op 08540 [67 AD3d 1225] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jesus Hernandez, 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 Chemung County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
As the result of an investigation initiated when a female prison employee received a letter ather home from an unidentified inmate, a search of petitioner's cell was conducted, pursuant towhich an address book was found that contained the names, addresses, birth dates and telephonenumbers of one former and two current female prison employees, including the recipient of theletter. Petitioner was thereafter served with a misbehavior report charging him with harassment,possession of personal information and violation of correspondence procedures for having sentthe letter and solicitation for having paid a civilian to acquire the personal information.Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Onadministrative appeal, petitioner's penalty was reduced, but the determination was otherwiseaffirmed. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony and documentary evidence,including the offending letter, petitioner's address book and a sample of petitioner's handwriting,provide substantial evidence to support the determination of petitioner's guilt (see Matter of Kairis v Fischer, 54AD3d 462, 463 [2008]; Matter ofKoehl v Fischer, 52 AD3d 1070, 1071[*2][2008],appeal dismissed 11 NY3d 809 [2008]). Notably, an investigator from the InspectorGeneral's office testified that petitioner admitted to him that he had paid someone outside theprison to research personal information on the employees.
We find that petitioner's challenges to the misbehavior report lack merit, inasmuch as theauthor investigated the matter to ascertain the facts before he wrote the report (see 7NYCRR 251-3.1 [b]; Matter of Rivera vSelsky, 43 AD3d 1210, 1210 [2007]) and the report sufficiently apprised petitioner ofthe charges against him which enabled him to prepare a defense (see Matter of Umoja v Bezio, 64AD3d 1066 [2009]; Matter ofLinares v Fischer, 59 AD3d 761 [2009], lv denied 12 NY3d 709 [2009]).Lastly, we have examined the record and find no evidence that the Hearing Officer was biased orthat the determination flowed from any bias (see Matter of Gimenez v Artus, 63 AD3d 1461, 1462 [2009];Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]).
We have examined petitioner's remaining contentions and find them to be either unpreservedor without merit.
Peters, J.P., Spain, Rose, Kavanagh and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.