State of New York Supreme Court, Appellate Division Third Judicial Department
September 20, 2012
IN THE MATTER OF NIKIEA SMITH, PETITIONER,
ALBERT PRACK, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: July 30, 2012
Before: Peters, P.J., Lahtinen, Spain, Stein 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Correction officials received a letter written by an inmate claiming to be the victim of a sexual assault by a correction officer. Included in the envelope with the letter was a condom that appeared to contain semen. The officer identified in the letter was placed on administrative leave, and the alleged victim was transferred to another correctional facility. When questioned, the alleged victim denied being sexually assaulted, and tests revealed that the condom did not contain semen. An investigation disclosed that petitioner may have authored the letter, but she denied writing it. Ultimately, forensic tests confirmed that the handwriting in the letter belonged to petitioner, and she thereafter was charged in a misbehavior report with making false statements, possessing contraband, impersonation and forgery. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the documentary evidence establishing that petitioner wrote the letter, as well as the testimony of the investigator from the Inspector General's office, provide substantial evidence supporting the determination of guilt (see Matter of Gourdine v Venettozzi, 76 AD3d 736, 736 ; Matter of Wright v Bezio, 64 AD3d 1109, 1110 ). Contrary to petitioner's claim, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Cruz v Walsh, 87 AD3d 1234, 1235 ; Matter of Gonzalez v Goord, 44 AD3d 1180 , lv denied 10 NY3d 701 ). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
Peters, P.J., Lahtinen, Spain, Stein and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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