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In the Matter of Ramiz Povataj v. Norman R. Bezio

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


May 26, 2011

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

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.

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ.

After correspondence containing a money order sent to an inmate in another facility was returned to petitioner's facility, he was charged in a misbehavior report with violating correspondence procedures and lying. He was found guilty of both charges following a tier III disciplinary hearing and, after an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, hearing testimony,copy of the letter and exemplars of petitioner's handwriting provide substantial evidence to support the determination (see Matter of Berry v Fischer, 78 AD3d 1411, 1412 [2010]; Matter of Jackson v Fischer, 59 AD3d 820, 820 [2009]). Contrary to petitioner's contention, the Hearing Officer's assessment of the writing samples was sufficient (see Matter of Berry v Fischer, 78 AD3d at 1412; Matter of Mills v Fischer, 65 AD3d 1427, 1427 [2009]). The testimony of petitioner and his brother that the letter was written and mailed by the brother presented an issue of credibility to be resolved by the Hearing Officer (see Matter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Reid v Fischer, 78 AD3d 1400, 1400 [2010]). We have examined petitioner's remaining contentions and find them unpreserved or without merit.

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur.

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

Robert D. Mayberger Clerk of the Court

ENTER:

20110526

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