IN RE: George WASHINGTON (2024)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an incarcerated individual, was charged in a misbehavior report with making threats and violating facility correspondence procedures.  According to the misbehavior report, while reviewing petitioner's outgoing JPay emails,¹ a correction officer was alerted to an email message authored by petitioner that contained threats of violence against facility staff and referenced a then-recent incident in which several correction officers were assaulted by incarcerated individuals.  Specifically, petitioner wrote that the “police here in [the correctional facility]” were “never going to learn until things happen like in [C]omstock[;] people only respect blood in their mouths to understand us.”  Following a tier III disciplinary hearing, petitioner was found guilty of the charges.  The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  As an initial matter, because petitioner pleaded guilty to the charge of violating facility correspondence procedures, he is precluded from challenging the evidentiary basis for that charge (see Matter of Linnen v. Prack, 92 A.D.3d 986, 986, 937 N.Y.S.2d 701 [3d Dept. 2012], lv dismissed 20 N.Y.3d 905, 956 N.Y.S.2d 477, 980 N.E.2d 525 [2012];  Matter of Frazier v. Prack, 62 A.D.3d 1185, 1185, 880 N.Y.S.2d 718 [3d Dept. 2009]).  Turning to the remaining charge of making threats, the misbehavior report, petitioner's testimony admitting that he authored the at-issue email and the related documentation provide substantial evidence supporting the determination of guilt (see Matter of Lebron v. Annucci, 173 A.D.3d 1584, 1584, 101 N.Y.S.3d 673 [3d Dept. 2019];  Matter of Washington v. Annucci, 160 A.D.3d 1313, 1313, 75 N.Y.S.3d 352 [3d Dept. 2018]; Matter of Cole v. New York State Dept. of Correctional Servs., 87 A.D.3d 1243, 1244, 931 N.Y.S.2d 712 [3d Dept. 2011]).  Petitioner's exculpatory claims that the threat was taken out of context and/or not directed toward any specific person(s) “presented a credibility issue for the Hearing Officer to resolve” (Matter of Griswold v. Goord, 39 A.D.3d 908, 909, 835 N.Y.S.2d 460 [3d Dept. 2007];  see Matter of Williams v. Annucci, 153 A.D.3d 1541, 1541, 60 N.Y.S.3d 706 [3d Dept. 2017]).  “Furthermore, we find no merit in petitioner's assertion that his 1st Amendment constitutional rights were violated” (Matter of Branch v. Annucci, 133 A.D.3d 942, 943, 18 N.Y.S.3d 567 [3d Dept. 2015] [citations omitted];  see Matter of Williams v. Annucci, 153 A.D.3d at 1541, 60 N.Y.S.3d 706).  To the extent that any of petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.

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

FOOTNOTES

1.   “JPay is a company that provides services to incarcerated individuals and their family and friends, including through a downloaded app for a tablet or smartphone that allows for, among other things, the sending and receiving of messages through email, ‘videogram’ or instant messaging” (People v. Jenne, 224 A.D.3d 953, 955 n 1, 205 N.Y.S.3d 234 [3d Dept. 2024];  see Matter of Morrison v. Annucci, 210 A.D.3d 1156, 1157 n 1, 177 N.Y.S.3d 782 [3d Dept. 2022]).

Egan Jr., J.P., Lynch, Ceresia, McShan and Mackey, JJ., concur.