| Matter of Cole v New York State Dept. of Correctional Servs. |
| 2011 NY Slip Op 06618 [87 AD3d 1243] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ronnie Cole, Petitioner, v New York StateDepartment of Correctional Services et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondents.
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, sent a letter to his son who was incarcerated at another correctionalfacility. The letter, however, was not received by petitioner's son as it was deemed unauthorizedand was returned. When it was later opened, the letter revealed that petitioner had put a hit onanother inmate and requested his son to follow through. As a result, petitioner was charged in amisbehavior report with making threats and violating facility correspondence procedures. At theconclusion of a tier III disciplinary hearing, he was found guilty of the charges and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author, petitioner'sadmission to writing the letter and the related documentation, provide substantial evidencesupporting the determination of guilt (see Matter of Cornwall v Fischer, 73 AD3d 1367, 1368 [2010]; Matter of Goldberg v Goord, 11 AD3d841, 841 [2004]). Petitioner's exculpatory [*2]explanation forthe contents of the letter presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v Goord, 25AD3d 852, 852 [2006]; Matter ofWright v Goord, 19 AD3d 855, 855 [2005], lv denied 5 NY3d 711 [2005]). Inaddition, while petitioner complains that the misbehavior report he received was not signed bythe author, a signed copy of the report was produced at the hearing and its author did testify.Thus, any deficiency was remedied and petitioner has not demonstrated that he was prejudiced(see Matter of Rush v Bezio, 79AD3d 1548, 1549 [2010]; Matter ofPage v Fischer, 64 AD3d 1067, 1068 [2009]). While petitioner further claims that hewas denied the right to recall the author of the misbehavior report, the record does not disclosethat he made such a request or, for that matter, that he requested any witnesses. Furthermore,upon reviewing the record, we are not persuaded that the Hearing Officer was biased or that thedetermination flowed from any alleged bias (see Matter of Hernandez v Fischer, 67 AD3d 1225, 1226 [2009];Matter of Haden v Selsky, 57 AD3d1056, 1057 [2008]). Petitioner's remaining arguments are either unpreserved for our reviewor are lacking in merit.
Rose, J.P., Lahtinen, Malone Jr., Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.