Opinion
2014-08-7
In the Matter of Darnell CREDELL, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Darnell Credell, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Darnell Credell, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and DEVINE, JJ.
LYNCH, J.
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 a certain disciplinary rule.
In February 2013, a facility teacher at the Bare Hill Correctional Facility received, through facility mail, two letters containing graphic and threatening content. Following an investigation, a misbehavior report was issued charging petitioner with harassment, threats of violence and threats. Following a tier III disciplinary hearing, petitioner was found guilty of all three charges and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination.
We confirm. The documentary evidence, including the two letters and petitioner's handwriting samples, and the hearing testimony of the investigator provide substantial evidence supporting the determination of guilt ( see Matter of Christian v. Venettozzi, 114 A.D.3d 975, 975, 979 N.Y.S.2d 863 [2014];Matter of Logan v. Fischer, 109 A.D.3d 1043, 1043, 971 N.Y.S.2d 484 [2013],lv. denied22 N.Y.3d 856, 2013 WL 6169286 [2013];Matter of Smith v. Fischer, 108 A.D.3d 987, 988, 969 N.Y.S.2d 245 [2013] ). The record demonstrates that the Hearing Officer properly conducted her own handwriting analysis after examining the letters and comparing them to the exemplars of petitioner's handwriting ( see Matter of Christian v. Venettozzi, 114 A.D.3d at 975, 979 N.Y.S.2d 863;Matter of Logan v. Fischer, 109 A.D.3d at 1043, 971 N.Y.S.2d 484;Matter of Smith v. Fischer, 108 A.D.3d at 988, 969 N.Y.S.2d 245). Further, petitioner's insistence that he did not write the letters created an issue of credibility for the Hearing Officer to resolve ( see Matter of Christian v. Venettozzi, 114 A.D.3d at 975, 979 N.Y.S.2d 863;Matter of Smith v. Fischer, 108 A.D.3d at 988, 969 N.Y.S.2d 245).
Petitioner's claim that he was denied his right to call a witness is without merit since the testimony he sought from her was not material or relevant to the charges ( see Matter of Burr v. Fischer, 95 A.D.3d 1538, 1538–1539, 943 N.Y.S.2d 920 [2012],lv. denied19 N.Y.3d 811, 2012 WL 3930658 [2012];Matter of Tafari v. Fischer, 94 A.D.3d 1324, 1325, 942 N.Y.S.2d 695 [2012],lv. denied19 N.Y.3d 807, 2012 WL 2401604 [2012]; 7 NYCRR 254.5[a] ). Moreover, the record does not support petitioner's contention that the Hearing Officer relied upon confidential information in rendering her determination ( compare Matter of Collins v. Fischer, 89 A.D.3d 1355, 1356, 932 N.Y.S.2d 916 [2011],lv. denied19 N.Y.3d 803, 2012 WL 1591160 [2012] ). Petitioner's remaining claims have been examined and found to be unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., McCARTHY, ROSE and DEVINE, JJ., concur.