Matter of Ponder v Fischer

Matter of Ponder v Fischer 2008 NY Slip Op 09324 [56 AD3d 1094] November 26, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Joseph Ponder, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Joseph Ponder, Alden, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

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 the Superintendent of Lakeview Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with violating facility correspondence rules. It was alleged that petitioner sent letters to an outside address, where the letters were then repackaged and forwarded to inmates at a different correctional facility. Following a tier II disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The hearing testimony, offending letters and exemplars of petitioner's handwriting, along with the reasonable inferences to be drawn therefrom, provide substantial evidence to support the determination of guilt (see Matter of Hannah v Burge, 43 AD3d 1234, 1234 [2007]). Contrary to petitioner's assertion, the Hearing Officer was qualified to make a comparison of the handwriting samples without the need for expert testimony on the subject (see Matter of Surdis v Walsh, 295 AD2d 735, 736 [2002]). Petitioner's remaining contentions have [*2]been examined and found to be unavailing.

Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.