State of New York Supreme Court, Appellate Division Third Judicial Department
June 24, 2010
IN THE MATTER OF KEVIN MITCHELL, PETITIONER,
WILLIAM BROWN, AS SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: May 12, 2010
Before: Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner sent a handwritten letter to a female librarian at the correctional facility where he was incarcerated professing his love, describing his genitals and offering to engage in sex. As a result, he was charged in a misbehavior report with solicitation, harassment and committing a sexual offense. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the handwritten letter and handwriting samples produced during the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Mills v Fischer, 65 AD3d 1427, 1427 ; Matter of Haden v Prack, 62 AD3d 1133, 1134 ). Petitioner's claim that the letter must have been composed by another inmate or staff member was not substantiated at the hearing and presented a credibility issue for the Hearing Officer to resolve (see Matter of Koehl v Fischer, 52 AD3d 1070, 1071 , appeal dismissed 11 NY3d 809 ; Matter of Moore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 ). Petitioner's remaining contentions have been considered and are lacking in merit.
Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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