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In re Legeros

Supreme Court of New York, Third Department

February 9, 2017

In the Matter of BERNARD J. LEGEROS, Petitioner,
v.
ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

          Calendar Date: January 18, 2017

          Law Offices of Orlee Goldfeld, New York City (Orlee Goldfeld of counsel), for petitioner.

          Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

          MEMORANDUM AND JUDGMENT

          Lynch, J.

         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 finding petitioner guilty of violating certain prison disciplinary rules.

         During the course of an investigation in which a mail watch was conducted to monitor petitioner's mail, it was discovered that petitioner had written a letter to another inmate that contained threatening language against two correction officers. The investigation further revealed that petitioner called his father the day after he wrote the letter, during which they discussed the idea of sending investigators to the residence of one officer. A subsequent search of petitioner's property disclosed a calendar book containing credit card information belonging to another person. As a result, petitioner was charged in a misbehavior report with making threats, violating facility correspondence procedures, possessing credit card information and engaging in violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all of the charges except for engaging in violent conduct. The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

         We confirm. The misbehavior report and related documentation, as well as the testimony of the correction officer who authored the report and petitioner's own admissions, provide substantial evidence supporting the determination of guilt (see Matter of Scott v Fischer, 92 A.D.3d 1000, 1000 [2012]; Matter of Cole v New York State Dept. of Correctional Servs., 87 A.D.3d 1243, 1243 [2011]). Although the hearing transcript discloses numerous inaudible portions, the gaps are not so significant as to preclude meaningful review of the arguments advanced by petitioner (see Matter of Torres v New York State Dept. of Corr. & Community Supervision, 130 A.D.3d 1122, 1122-1123 [2015]; compare Matter of Tolliver v Fischer, 125 A.D.3d 1023, 1023-1024 [2015], lv denied 25 N.Y.3d 908 [2015]). Further, petitioner's exculpatory explanation for the contents of the letter and the telephone call, including that he never intended or had the ability to threaten anyone, presented a credibility issue for the Hearing Officer to resolve (see Matter of Cole v New York State Dept. of Correctional Servs., 87 A.D.3d at 1243; Matter of Alston v Goord, 25 A.D.3d 852, 852 [2006]).

         Turning to petitioner's procedural contentions, we reject his argument that the misbehavior report was defective because it contains inaccurate information regarding the location of the incidents. While the misbehavior report appears to contain some inaccuracies in this regard, the report as a whole provided adequate notice of the charges, as it set forth the date and time of the incidents, the specific rule violations and enough details of the misconduct to allow petitioner to prepare a meaningful defense (see Matter of Chandler v Annucci, 135 A.D.3d 1258, 1259 [2016]; Matter of Toro v Fischer, 104 A.D.3d 1036, 1037 [2013]; Matter of Ponder v Fischer, 54 A.D.3d 1094, 1095 [2008]). We also reject petitioner's contention that the misbehavior report was not written in a timely manner, as it was prepared at the conclusion of an ongoing investigation into petitioner's conduct and, thus, was generated "as soon as practicable" in accordance with the requirements of 7 NYCRR 251-3.1 (a) (see Matter of Scott v Fischer, 92 A.D.3d at 1001; Matter of Correnti v Fischer, 83 A.D.3d 1354, 1354 [2011]). In addition, the record is devoid of any evidence that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Lopez v Department of Corr. & Community Supervision, 142 A.D.3d 1238, 1240 [2016]; Matter of Smith v Venettozzi, 142 A.D.3d 1201, 1202 [2016]). Furthermore, in light of the violent nature of the threats made, we do not find the penalty, which included 180 days in the special housing unit, so shocking to one's sense of fairness as to be excessive (see Matter of Mullins v Venettozzi, 141 A.D.3d 1063, 1064 [2016]; Matter of Lamere v Fischer, 87 A.D.3d 768, 768 [2011]). Lastly, petitioner failed to preserve for our review his contention that the mail watch was not properly authorized, as he never raised it at the disciplinary hearing or in his administrative appeal (see Matter of Greene v Fischer, 107 A.D.3d 1271, 1271 [2013]; Matter of Devaughn v Bezio, 75 A.D.3d 673, 674 [2010]; Matter of Constantino v Goord, 33 A.D.3d 1093, 1094 [2006]). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or lacking in merit.

          McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.

         ADJUDGED that the determination is confirmed, without costs, ...


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