Matter of Stewart v McArdle

Matter of Stewart v McArdle 2017 NY Slip Op 03252 Decided on April 27, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 27, 2017
523613

[*1]In the Matter of RICKY R. STEWART JR., Petitioner,

v

BARRY J. McARDLE, as Superintendent of Watertown Correctional Facility, Respondent.

Calendar Date: February 28, 2017
Before: McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

Ricky R. Stewart Jr., Watertown, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 finding petitioner guilty of violating a prison disciplinary rule.

After an envelope addressed to petitioner's mother was discovered to contain a card addressed to his children who were the subject of an order of protection, petitioner was charged in a misbehavior report with violating facility correspondence procedures. Following a tier II disciplinary hearing, petitioner was found guilty of the charge and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the envelope that petitioner addressed to his mother containing the card addressed to his children, the order of protection and petitioner's testimony at the hearing provide substantial evidence to support the determination that petitioner violated correspondence procedures (see Matter of Cortorreal v Goord, 41 AD3d 1048, 1048 [2007]; Matter of Goldberg v Goord, 11 AD3d 841, 841 [2004]). Petitioner's denial of any misconduct, claiming that he sent the children's card to his mother so that she could hold it until such time as it was legally permissible to give to the children, presented a credibility issue for the Hearing Officer to resolve (see Matter of Cole v New York State Dept. of Correctional Servs., 87 AD3d 1243, 1243 [2011]).

McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ., concur.

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