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Cornwall v. Fischer

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


April 22, 2010

IN THE MATTER OF SHAWN CORNWALL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: March 1, 2010

Before: Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., 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.

Correction officials determined that petitioner had sent a letter referencing gang-related matters to another inmate in the same correctional facility through a third party located outside the facility. As a result, petitioner was charged in a misbehavior report with smuggling, violating facility correspondence procedures and distributing gang-related materials. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the hearing testimony and documentary evidence, provide substantial evidence supporting the determination of guilt (see Matter of Murray v Selsky, 58 AD3d 975, 975 [2009]; Matter of Martinez v Selsky, 53 AD3d 989 [2008]). Petitioner's claim that another individual who copied his handwriting composed the letter presented a credibility issue for the Hearing Officer to resolve (see Matter of Martinez v Selsky, 53 AD3d at 989). Although petitioner also asserts that he was denied adequate employee assistance, he has failed to demonstrate that he was prejudiced by any claimed deficiencies (see Matter of Liner v Fischer, 56 AD3d 1088, 1088 [2008], lv denied 12 NY3d 703 [2009]; Matter of Kelly v Selsky, 54 AD3d 1118, 1119 [2008]). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.

Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

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

20100422

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