| Matter of Hernandez v Bezio |
| 2010 NY Slip Op 04486 [73 AD3d 1406] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jose Hernandez, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1]
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Ulster County) to review three determinations of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
On May 18, 2008, petitioner was charged in a misbehavior report with failing to complywith facility correspondence procedures, providing medication to another, smuggling and misuseof state property. Following a tier III disciplinary hearing, he was found guilty as charged. OnMay 22, 2008, petitioner was charged in a misbehavior report with attempted assault, refusing adirect order and violent conduct. Following a tier III hearing, petitioner was found guilty ascharged. On May 26, 2008, petitioner was charged in a misbehavior report with refusing a directorder, failing to follow urinalysis testing procedures and engaging in lewd conduct. The chargesof refusing a direct order and failing to follow testing procedures were subsequentlyadministratively dismissed. Following a tier III disciplinary hearing, petitioner was found guiltyof engaging in lewd conduct. After petitioner exhausted his administrative remedies involving[*2]all three determinations, he commenced this CPLR article 78proceeding.[FN*]
We confirm. With regard to the determination associated with the charges brought in theMay 18, 2008 misbehavior report, the report, together with petitioner's admission that he hadsent prescription medication through the mail to his father, provide substantial evidence insupport of the determination of guilt (see Matter of Johnson v Fischer, 67 AD3d 1138, 1139 [2009]).Contrary to petitioner's contention, the correctional facility had the authority to search theenvelope, as it was returned to the facility by the US Postal Service due to an illegible address(see 7 NYCRR 720.4 [k]; Matter of Tankleff v Senkowski, 3 AD3d 621, 622 [2004], lvdenied 2 NY3d 703 [2004]). Additionally, there is no support in the record for petitioner'scontention that he made his admissions at the hearing pursuant to an agreement he had madewith the Hearing Officer prior to the hearing (see Matter of Allen v Goord, 10 AD3d 742, 742 [2004]).
Regarding the determinations as to the charges brought in the May 22, 2008 and May 26,2008 misbehavior reports, we conclude that the reports, together with the hearing testimony ofthe authors and other correction officers present during the incidents, support the determinationsof guilt (see Matter of Fish v Burge,52 AD3d 1141, 1141 [2008]). Petitioner's contradictory testimony regarding the May 22,2008 report—that he was physically unable to assault the correction officers due to thefact that he required the use of a wheelchair and the officers were theaggressors—presented a credibility issue for the Hearing Officer to resolve (see Matter of Terrence v Fischer, 64AD3d 1110, 1111 [2009]). Further, we reject petitioner's contention that he was denied theright to call his treating physician as a witness, inasmuch as the witness had no direct knowledgeof the incident and any testimony as to petitioner's physical capabilities would have beenredundant in light of petitioner's testimony that he was able to get out of his wheelchair andmove around by his own power (seeMatter of Brown v Taylor, 62 AD3d 1230, 1231 [2009]). Finally, petitioner's claims ofineffective employee assistance at the disciplinary hearings are neither substantiated by therecord nor is it indicated that petitioner suffered any prejudice (see Matter of Boley v Selsky, 50AD3d 1411, 1412 [2008]).
Petitioner's remaining claims, to the extent not specifically addressed herein, have beenexamined and found to be unavailing.
Spain, J.P., Rose, Garry and Egan Jr., JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner also challenges analleged determination finding him guilty of harassment following a tier II disciplinary hearingheld July 18, 2008. Respondent indicates that there is no evidence of such a determination andour review of petitioner's prison disciplinary history finds no such violation recorded.