IN RE: Lorgio HERNANDEZ (2005)

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.

In September 2003, petitioner sent a homemade anniversary card to a couple whose home he had burglarized in September 1997 to commemorate the anniversary date of the burglary.   The couple complained to the superintendent of the facility where petitioner was incarcerated.   As a result, he was charged in a misbehavior report with harassment.   He was found guilty of this charge following a tier III disciplinary hearing and the determination was upheld on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of its author, the card and the complaint letter, provide substantial evidence supporting the determination of guilt (see Matter of Green v. Ricks, 304 A.D.2d 1010, 1011, 760 N.Y.S.2d 238 [2003], lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003], cert. denied sub nom. Green v. Girdich, 540 U.S. 1166, 124 S.Ct. 1181, 157 L.Ed.2d 1213 [2004] ).   Petitioner's claim that he sent the card to the couple because it was, in fact, their anniversary presented a credibility issue for the Hearing Officer to resolve (see Matter of Rodriguez v. Senkowski, 298 A.D.2d 743, 743, 748 N.Y.S.2d 524 [2002] ).

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