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Hunter v. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


August 6, 2009

IN THE MATTER OF DANTE HUNTER, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

As part of an investigation, petitioner, a prison inmate at Oneida Correctional Facility in Oneida County, met with a prison counselor to discuss his efforts to incorporate a business. Petitioner was advised that he was not permitted to conduct a business while incarcerated and that he should refrain from seeking incorporation. However, a subsequent investigation of petitioner's mail revealed that he had proceeded to file a certificate of incorporation which was granted by the Department of State. As a result, petitioner was found guilty at the conclusion of a tier III disciplinary hearing of disobeying a direct order and failing to comply with facility correspondence procedures. Petitioner's administrative appeal resulted in a reduction of the penalty imposed but was otherwise unsuccessful, and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The misbehavior report, authored by the prison counselor who personally directed petitioner to cease his efforts to incorporate a business, is sufficient by itself to provide substantial evidence supporting the determination of guilt (see Matter of Koehl v Artus, 56 AD3d 918 [2008], appeal dismissed, lv denied 12 NY3d 754 [2009]; Matter of Adams v Goord, 45 AD3d 940, 940-941 [2007]). To the extent that petitioner claims that he was directed only to refrain from conducting business while incarcerated without any reference to the procurement of a certificate of incorporation, credibility issues were created for resolution by the Hearing Officer (see Matter of Koehl v Artus, 56 AD3d at 918; Matter of Harvey v Woods, 53 AD3d 944 [2008]; Matter of Jones v Goord, 50 AD3d 1427, 1428 [2008]). Petitioner's remaining contentions have been examined and found to be unpersuasive.

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

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

20090806

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