| Matter of Davis v Fischer |
| 2010 NY Slip Op 06737 [76 AD3d 1154] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony Davis, 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 found petitionerguilty of violating certain prison disciplinary rules.
Following an investigation into the receipt of two letters of a personal nature received by afemale commissary employee, petitioner, a prison inmate, received a misbehavior report charginghim with harassing an employee, stalking, smuggling, lying and soliciting sex. A tier IIIdisciplinary hearing ensued, after which petitioner was found guilty of all charges and wasassessed various penalties, including the recommended loss of good time. Facility officialsthereafter reduced the penalty assessed and, subsequently, the modified determination wasadministratively affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding.
Initially, the Attorney General concedes, and we agree, that there was insufficient evidence tosustain the charge that petitioner solicited sex. As such, the underlying determination must beannulled to that extent and, in light of the recommended loss of good time, we remit torespondent for a redetermination of the penalty imposed (see Matter of Wheeler-Whichard v Fischer, 69 AD3d 1286, 1286[2010]; Matter of Gomez v Leclaire,53 AD3d 994, 995 [2008]).
As for the balance of the charges, we find that the misbehavior report, the hearing testimony,the offending letters and the samples of petitioner's handwriting provide substantial [*2]evidence supporting the determination of guilt (see Matter of Woodard v Prack, 64AD3d 842, 843 [2009]; Matter ofKoehl v Fischer, 52 AD3d 1070, 1071 [2008], appeal dismissed 11 NY3d 809[2008]). Contrary to petitioner's contentions, we find that the Hearing Officer made anindependent assessment of the letters and the handwriting samples and, as the trier of fact, wasqualified to do so (see Matter of Mills vFischer, 65 AD3d 1427 [2009]; Matter of Sweat v Fischer, 52 AD3d 1142, 1142 [2008]).
We have examined petitioner's remaining contentions and find them unavailing.
Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof soliciting sex and imposed a penalty; petition granted to that extent, respondent is directed toexpunge all references thereto from petitioner's institutional record and matter remitted torespondent for an administrative redetermination of the penalty on the remaining violations; and,as so modified, confirmed.