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Ponder v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 26, 2008

IN THE MATTER OF JOSEPH PONDER, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND JUDGMENT

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 the Superintendent of Lakeview Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with violating facility correspondence rules. It was alleged that petitioner sent letters to an outside address, where the letters were then repackaged and forwarded to inmates at a different correctional facility. Following a tier II disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The hearing testimony, offending letters and exemplars of petitioner's handwriting, along with the reasonable inferences to be drawn therefrom, provide substantial evidence to support the determination of guilt (see Mater of Hannah v Burge, 43 AD3d 1234, 1234 [2007]). Contrary to petitioner's assertion, the Hearing Officer was qualified to make a comparison of the handwriting samples without the need for expert testimony on the subject (see Matter of Surdis v Walsh, 295 AD2d 735, 736 [2002]). Petitioner's remaining contentions have been examined and found to be unavailing.

Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ., concur.

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

20081126

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