IN RE: David C. MOORE (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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

During a mail watch, a correction officer discovered that petitioner had sent a letter to a female in Minnesota directing her to open a large white envelope she had received, to mail a preaddressed stamped envelope contained inside and to notify him when the mailing was complete.   Based upon the circumstances, the correction officer believed that the preaddressed stamped envelope originated from within the correctional facility and was sent by another inmate.   Petitioner was charged in a misbehavior report with violating facility correspondence procedures and was found guilty following a tier III disciplinary hearing.   The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

The misbehavior report, together with the testimony of the correction officer who prepared it, provide substantial evidence supporting the determination of guilt (see Matter of Tumminia v. Senkowski, 290 A.D.2d 902, 903, 737 N.Y.S.2d 669 [2002] ).   Petitioner's exculpatory explanation for the mailing presented an issue of credibility for the Hearing Officer to resolve (see Matter of Burgess v. Goord, 294 A.D.2d 746, 746, 741 N.Y.S.2d 757 [2002] ).   Contrary to petitioner's claim, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fitzpatrick v. Goord, 269 A.D.2d 643, 644, 704 N.Y.S.2d 173 [2000] ).   We have considered petitioner's remaining contentions, to the extent they are properly before us, and find them to be without merit.

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