IN RE: Edward KOEHL (2008)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule that prohibits harassment after it was determined that he wrote a threatening and obscene letter to the chairperson of the Committee on Professional Standards for the Third Judicial Department.   That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, the hearing testimony and the offending letter, along with exemplars of petitioner's handwriting, provide substantial evidence to support the determination of guilt (see Matter of Moore v. New York State Dept. of Correctional Servs., 50 A.D.3d 1350, 1351, 854 N.Y.S.2d 827 [2008];  Matter of Hood v. Goord, 36 A.D.3d 1064, 1065, 826 N.Y.S.2d 517 [2007] ).   Petitioner's claim that he did not author the letter presented a credibility issue for the Hearing Officer to resolve (see Matter of Hood v. Goord, 36 A.D.3d at 1065, 826 N.Y.S.2d 517).   Contrary to petitioner's contention, the content of the letter-which contains violent, threatening and obscene language directed at the recipient and his family-does not constitute protected speech under the 1st Amendment of the U.S. Constitution (see Matter of Reid v. Selsky, 43 A.D.3d 1258, 1258-1259, 842 N.Y.S.2d 113 [2007];  Matter of Jones v. Department of Correctional Servs. of State of N.Y., 283 A.D.2d 805, 805-806, 724 N.Y.S.2d 793 [2001] ).   Nor are we convinced that petitioner was improperly denied access to various documents in that the materials he requested were either confidential or not available (see Matter of Lebron v. Artus, 48 A.D.3d 993, 852 N.Y.S.2d 451 [2008], lv. denied 10 N.Y.3d 709, 859 N.Y.S.2d 394, 889 N.E.2d 81 [2008];  Matter of Davis v. Goord, 21 A.D.3d 606, 608, 799 N.Y.S.2d 636 [2005], lv. denied 5 N.Y.3d 861, 807 N.Y.S.2d 12, 840 N.E.2d 1025 [2005];  Matter of Knight v. Selsky, 20 A.D.3d 852, 853, 798 N.Y.S.2d 810 [2005] ).

To the extent preserved, petitioner's remaining contentions, including his claims that he was denied effective employee assistance and the misbehavior report was written in retaliation for a grievance he filed, have been reviewed and found to be without merit.

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