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Lafferty v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF ADAM LAFFERTY, 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: March 2, 2009

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

After receiving a threatening letter, an inmate grievance program supervisor charged petitioner in a misbehavior report with harassment and making threats. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of both charges. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report, the offending letter and testimony adduced at the hearing (see Matter of Knight v McGinnis, 10 AD3d 754, 755 [2004]). Although the Hearing Officer initially found that the letter was not authored in petitioner's handwriting, after having considered all of the evidence, he qualified that initial finding and concluded that it did not appear that the letter was prepared in petitioner's "usual" handwriting. The Hearing Officer further rejected as not credible petitioner's statements denying knowledge of the letter. Thus, petitioner's evidentiary challenge to the determination of guilt, premised upon the Hearing Officer's initial finding regarding the handwriting in the letter, is unavailing.

We have examined petitioner's remaining procedural contentions, including his claims that he was denied meaningful employee assistance and the right to present witness testimony and that the Hearing Officer was biased, and, to the extent preserved, find no basis for annulment.

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

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

20090416

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