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Mills v. Fischer

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


September 24, 2009

IN THE MATTER OF ANTHONY MILLS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 3, 2009

Before: Cardona P.J., Spain, Kane, Stein 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Based upon an allegation that petitioner sent a sexually explicit letter to a nurse at the correctional facility where he was incarcerated, he was charged in a misbehavior report with engaging in harassment, making threats, committing a sexual offense and violating facility correspondence procedures. Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the letter and the samples of petitioner's handwriting that were found in his cell, provide substantial evidence supporting the determination of guilt (see Matter of Moore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 [2008]; Matter of Kornegay v Goord, 21 AD3d 1236, 1237 [2005]). "Contrary to petitioner's contention, expert handwriting analysis testimony was not required as the independent assessment of the writing samples by the Hearing Officer was sufficient" (Matter of Moore v New York State Dept. of Correctional Servs., 50 AD3d at 1351 [citations omitted]). Petitioner's denial of the charges and claim that he was set up presented a credibility issue for the Hearing Officer to resolve (see Matter of Grof v Goord, 278 AD2d 650 [2000]). Therefore, we find no basis to disturb the determination of guilt.

Cardona P.J., Spain, Kane, Stein and McCarthy, JJ., concur.

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

20090924

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