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In re Logan

Supreme Court of New York, Third Department

September 19, 2013

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

Calendar Date: July 29, 2013

Robert Logan, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Rose, J.P., Stein, Spain 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 Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with making false or misleading statements, impersonation, violating correspondence procedures, making a false alarm and harassment after an investigation revealed that he wrote a letter to the Inspector General's office reporting a false threat against a correction officer using another inmate's name and also submitted a grievance under that inmate's name. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, confidential testimony, the hearing testimony of the investigator, copies of the letter and the grievance, and exemplars of petitioner's handwriting provide substantial evidence supporting the determination of guilt (see Matter of Collins v Fischer, 89 A.D.3d 1355, 1356 [2011], lv denied 19 N.Y.3d 803 [2012]; Matter of Povataj v Bezio, 84 A.D.3d 1658, 1659 [2011], lv denied 17 N.Y.3d 709 [2011]). Notably, as the trier of fact, the Hearing Officer was qualified to make an independent assessment of the handwriting samples (see Matter of Collins v Fischer, 89 A.D.3d at 1356; Matter of Davis v Fischer, 76 A.D.3d 1154, 1155 [2010]). Based upon our review of the record, the determination of guilt will not be disturbed.

Rose, J.P., Stein, Spain and Egan Jr., JJ., concur.

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


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