Hernandez v. Goord

May 19, 2005
Versions:18 A.D.3d 1042
794 N.Y.S.2d 741
2005 N.Y. App. Div. LEXIS 5413

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

In September 2003, petitioner sent a homemade anniversary card to a couple whose home he had burglarized in September 1997 to commemorate the anniversary date of the burglary. The couple complained to the superintendent of the facility where petitioner was incarcerated. As a result, he was charged in a misbehavior report with harassment. He was found guilty of this charge following a tier III disciplinary hearing and the determination was upheld on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, the card and the complaint letter, provide substantial evidence supporting the determination of guilt (see Matter of Green v Ricks, 304 AD2d 1010, 1011 [2003], lv denied 100 NY2d 509 [2003], cert denied sub nom. Green v Girdich, 540 US 1166 [2004]). Petitioner’s claim that he sent the card to the couple because it was, in fact, their anniversary presented a credibility issue for the Hearing Officer to resolve (see Matter of Rodriguez v Senkowski, 298 AD2d 743, 743 [2002]).

Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.