| Matter of Pettus v New York State Dept. of CorrectionalServs. |
| 2010 NY Slip Op 04489 [73 AD3d 1411] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Pettus, Appellant, v New York StateDepartment of Correctional Services et al., Respondents. |
—[*1]
Appeal from a judgment of the Supreme Court (McDonough, J.), entered September 25,2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.
Petitioner sent a letter to a correction officer at the facility where he was housed accusing theofficer of, among other things, being a white supremacist. The officer had previously instructedpetitioner not to send him letters of this nature. As a result, petitioner was charged in amisbehavior report with harassment and refusing a direct order. Following a tier III disciplinaryhearing, petitioner was found guilty of the charges and the determination was later affirmed onadministrative appeal. Petitioner then commenced this CPLR article 78 proceeding challengingthe determination. Following service of respondents' answer, Supreme Court dismissed thepetition, resulting in this appeal.[FN*][*2]
We affirm. The misbehavior report, the letter and thetestimony of the correction officer to whom it was addressed, and petitioner's admission tosending the letter provide substantial evidence supporting the determination of guilt (see Matter of Moore v Fischer, 63AD3d 1401, 1401 [2009]; Matterof Reid v Selsky, 43 AD3d 1258, 1258 [2007]). While petitioner maintained that theletter was authorized legal mail related to a lawsuit that he had brought against the officer, theletter belies this characterization. In any event, this presented a credibility issue for the HearingOfficer to resolve (see Matter of Harveyv Goord, 47 AD3d 1096, 1096-1097 [2008], appeal dismissed 10 NY3d 855[2008]). Furthermore, there is no merit to petitioner's claim that the violations should not havebeen categorized as tier III infractions given that the pertinent regulations authorize thatdesignation (see 7 NYCRR 270.2 [B] [7] [i]; [8] [ii]).
Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Although the petition raised aquestion of substantial evidence and the proceeding should have been transferred, we shallconsider the issue de novo and render judgment accordingly (see Matter of Parkinson v Selsky, 45 AD3d 1079, 1080 [2007]).