| Matter of Abreu v Bezio |
| 2010 NY Slip Op 02447 [71 AD3d 1341] |
| March 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Carlos Abreu, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
As the result of an investigation initiated when a female employee of the Department ofCorrectional Services received a sexually explicit letter, petitioner was charged in a misbehaviorreport with violating the prison disciplinary rules prohibiting harassment and stalking. He wasfound guilty of both charges following a tier III disciplinary hearing. Although the determinationwas modified on administrative appeal and the stalking charge was dismissed, that part of thedetermination finding petitioner guilty of harassment was upheld. This CPLR article 78proceeding ensued.
Preliminarily, we note that the petition alleges an issue of substantial evidence and, contraryto petitioner's contention, Supreme Court properly transferred the proceeding to this Court(see CPLR 7804 [g]; Matter of Barnwell v Goord, 268 AD2d 725, 725 [2000],lv denied 95 NY2d 751 [2000]). Turning to the merits, petitioner admitted at the hearingthat he wrote the letter, which is replete with personal and sexual references that unquestionablyrise to the level of harassment under the applicable prison disciplinary rule (see 7NYCRR 270.2 [B] [8] [ii]; Matter [*2]of Messiah v New York State Dept. of Correctional Servs., 52AD3d 1133, 1133 [2008]). Accordingly, petitioner's admission, the misbehavior report andtestimony from its author constitute substantial evidence supporting the determination of guilt(see Matter of Lafferty v Fischer,61 AD3d 1190, 1191 [2009]). Further, given petitioner's admission that he wrote the letter,we find no error in the Hearing Officer's denial of petitioner's request to call certain witnesses astheir testimony would have been irrelevant or redundant (see Matter of Valerio v New York State Dept. of Correctional Servs.,67 AD3d 1228 [2009]).
We are similarly unpersuaded by petitioner's assertion that intermittent gaps in the hearingtranscript are so significant as to prevent meaningful judicial review (see Matter of Parkinson v Selsky, 49AD3d 985, 986 [2008]). Finally, petitioner's mental condition was not raised as a defense tothe disciplinary charges and thus the issue is unpreserved for our review (see Matter of Butler v Selsky, 49AD3d 1122, 1123 [2008]; Matter of Spirles v Goord, 308 AD2d 610 [2003]).Petitioner's remaining contentions, including those related to his interpreter and his claim that thecharges were retaliatory, have been reviewed and are determined to be withoutmerit.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.