Harvey v. Goord

Jan 17, 2008
Versions:47 A.D.3d 1096
850 N.Y.S.2d 268

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of unauthorized organizational activity and a facility correspondence violation. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report and testimony adduced at the hearing, including admissions made by petitioner that he mailed the offending letter containing organizational recruitment instructions to a third person not addressed on the outside of the envelope (see Matter of Lopez v Healy, 39 AD3d 978, 978 [2007]; Matter of Rizzuto v Goord, 35 AD3d 1075, 1075 [2006]). As for petitioner’s claim that the organization was not unauthorized, that created credibility issues for resolution by the Hearing Officer (see Matter of Rivera v Selsky, 43 AD3d 1210, 1210 [2007]). To the extent preserved, we have examined petitioner’s remaining contentions, including his claims that the opening of his mail was not authorized and he was denied the right to present witness testimony, and find them to be unavailing.

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.