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Palacio v. New York State Department of Correctional Services

12 A.D.3d 994 Court N.Y. App. Div. Decision date 2004-11-24 English

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p. 994
In the Matter of Heriberto Palacio, Petitioner, v New York State Department of Correctional Services et al., Respondents.
[784 NYS2d 909]

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

p. 995
Petitioner was charged in a misbehavior report with violating facility correspondence procedures after he attempted to send a personal letter through the legal mail at the prison where he was incarcerated. He was found guilty of this charge following a tier III disciplinary hearing, and the determination was upheld on administrative appeal. He then commenced this CPLR article 78 proceeding challenging it.

We confirm. The misbehavior report, together with petitioner’s admission that he drafted the letter and attempted to send it through the legal mail to a physician at her residence address, constitute substantial evidence supporting the determination of guilt (see Matter of Jackson v Portuondo, 288 AD2d 733 , 733-734 [2001]; Matter of Fitzpatrick v Goord, 269 AD2d 643 , 644 [2000]). Petitioner’s explanation concerning the personal references in the letter presented a credibility issue for the Hearing Officer to resolve (see Matter of Jackson v Portuondo, 242 AD2d 809 , 809 [1997]). His procedural and constitutional claims were unpreserved or lacking in merit (see Matter of Cummings v Goord, 10 AD3d 748 , 749 [2004]).

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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