IN RE: Jeffrey COLLINS

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Jeffrey COLLINS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Decided: January 23, 2014

Before: PETERS, P.J., LAHTINEN, McCARTHY and GARRY, JJ. Jeffrey Collins, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 a prison disciplinary rule.

Petitioner, an inmate, handed a female correction officer a note indicating that he was physically attracted to her and suggesting that she resign from her job in order to pursue a romantic relationship with him. While she was doing her rounds, he requested an answer to his proposition and she responded in the negative. As a result of this incident, petitioner was charged in a misbehavior report with harassing an employee. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the recipient of the note and the captain to whom she reported the incident, provide substantial evidence supporting the determination of guilt (see Matter of Monroe v. Fischer, 87 AD3d 1300, 1301 [2011]; Matter of Morusma v. Fischer, 74 AD3d 1675, 1675 [2010] ). The contrary testimony of petitioner and his inmate witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Connelly v. Griffin, 101 AD3d 1211, 1212 [2012]; Matter of Truman v. Fischer, 75 AD3d 1019, 1020 [2010] ). Petitioner's claim that he was improperly denied documentary evidence, specifically the note, and that this violated his due process right to put forth a defense is unpersuasive. The captain to whom the note was given explained that it had apparently been lost sometime after he placed it in the correction officer's mailbox with instructions to prepare a misbehavior report. After he became aware that the note had been lost, the captain prepared a memorandum confirming its contents. Inasmuch as there is nothing in the record to indicate that the failure to produce the note was done in bad faith, there was no due process violation (see Matter of Russell v.. Selsky, 50 AD3d 1412, 1413 [2008]; Matter of Morgan v. Goord, 10 AD3d 792, 793 [2004] ). We have reviewed petitioner's remaining contentions and also find them to be lacking in merit.

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

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