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In re Christian

Supreme Court of New York, Third Department

February 6, 2014

In the Matter of RICHARD CHRISTIAN, Petitioner,
v.
D. VENETOZZI, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: January 2, 2014

Richard Christian, Coxsackie, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

A female correction counselor received a letter from an inmate expressing an interest in getting to know her better and requesting contact information. Although the letter indicated that it was signed by an inmate named Wood, a correction sergeant discovered through the course of an investigation involving handwriting comparisons that the letter was actually written by petitioner. As a result, petitioner was charged in a misbehavior report with stalking, harassment and violating facility correspondence procedures. At the conclusion of a tier III disciplinary hearing, he was found guilty of harassment and violating facility correspondence procedures. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and documentary evidence, including the offending letter and petitioner's handwriting samples, as well as the testimony of the officers involved in the investigation, provide substantial evidence supporting the determination of guilt (see Matter of Hernandez v Fischer, 67 A.D.3d 1225, 1225 [2009]; see also Matter of Berry v Fischer, 78 A.D.3d 1411, 1412 [2010]; Matter of Ellis v Coombe, 253 A.D.2d 945, 945 [1998]). Contrary to petitioner's claim, the record reveals that the Hearing Officer conducted his own handwriting analysis after examining the documentation reviewed during the investigation, and we note that he was entitled to make his own comparison without expert testimony (see Matter of Ponder v Fischer, 56 A.D.3d 1094, 1094 [2008]; Matter of Surdis v Walsh, 295 A.D.2d 735, 736 [2002]). While petitioner maintained that he did not write the letter in question, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Scott v Fischer, 109 A.D.3d 1066, 1066 [2013]; Matter of Smith v Fischer, 108 A.D.3d 987, 988 [2013]). Petitioner's remaining contentions have not been preserved for our review due to his failure to make appropriate objections at the hearing.

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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