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In re Smith

Supreme Court of New York, Third Department

July 25, 2013

In the Matter of CLIFFORD SMITH, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: June 6, 2013

Clifford Smith, Fallsburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to challenge a tier III disciplinary determination rendered after a hearing finding him guilty of soliciting a sexual act, harassment and violation of correspondence procedures. According to the misbehavior report, petitioner admitted authoring a letter that was mailed to a civilian teacher that invited her — in graphic terms — to engage in sexual activity. Following petitioner's administrative appeal, the determination of guilt was affirmed.

We confirm. The detailed misbehavior report, along with the letter, handwriting samples, confidential proof and hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Smith v Prack, 98 A.D.3d 1180, 1180 [2012]; Matter of Lumpkin v Fischer, 93 A.D.3d 1011, 1012 [2012]). Although petitioner denied writing the letter and telling correction officers that he had done so, this created a credibility issue for the Hearing Officer to resolve (see Matter of Povataj v Bezio, 84 A.D.3d 1658, 1659 [2011], lv denied 17 N.Y.3d 709 [2011]). In any event, contrary to petitioner's argument, the record confirms that the Hearing Officer, as trier of fact, noted the similarity of the handwriting in the samples to the letter on the record and relied on these items in rendering the determination of guilt (see Matter of Lumpkin v Fischer, 93 A.D.3d at 1012; Matter of Collins v Fischer, 89 A.D.3d 1355, 1356 [2011], lv denied 19 N.Y.3d 803 [2012]).

Petitioner's remaining contentions, including his claims that the hearing transcript was incomplete or insufficient for meaningful review (see Matter of Smythe v Fischer, 101 A.D.3d 1280, 1281 [2012], lv denied 20 N.Y.3d 861 [2013]) and that issues related to his mental health status (see 7 NYCRR 254.6 [b]) were insufficiently explored, have been examined and found to be without merit.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

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


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