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Burgess v. Goord

Appellate Division of the Supreme Court of New York, Third Department
May 16, 2002
294 A.D.2d 746 (N.Y. App. Div. 2002)

Opinion

90890

May 16, 2002.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Herbert Burgess, Dannemora, petitioner pro se.

Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondent.

Before: Cardona, P.J., Mercure, Spain, Carpinello and, Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

Petitioner was found guilty of violating the prison disciplinary rules that prohibit unhygienic acts and noncompliance with facility correspondence regulations. The misbehavior report relates that in the course of an authorized mail watch, a letter came to light that petitioner had written to a female correspondent. In it, petitioner wrote, "I've enclosed a special gift for you, Beloved. This time the cloth, which is a piece of my underwear, has about ten loads on it." In a second letter to the same individual, petitioner enclosed a piece of stained cloth, explaining that he had forgotten to enclose it with his previous letter. From this correspondence, the author of the misbehavior report concluded that petitioner had attempted to send cloth stained with seminal fluid through the mail.

Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the detailed misbehavior report, copies of petitioner's letters and his admission that he wrote them (see, Matter of Jones v. Department of Correctional Servs. of State of N.Y., 283 A.D.2d 805; Matter of Baez v. Goord, 264 A.D.2d 916). Petitioner's testimony that he had been joking when he wrote the statements in question presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Bonez v. Clark, 275 A.D.2d 853;Matter of Nelson v. Selsky, 239 A.D.2d 795). The remaining issues raised by petitioner have been examined and found to lack merit.

Cardona, P.J., Mercure, Spain, Carpinello and Lahtinen, JJ., concur.

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


Summaries of

Burgess v. Goord

Appellate Division of the Supreme Court of New York, Third Department
May 16, 2002
294 A.D.2d 746 (N.Y. App. Div. 2002)
Case details for

Burgess v. Goord

Case Details

Full title:IN THE MATTER OF HERBERT BURGESS, Petitioner, v. GLENN S. GOORD, AS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 16, 2002

Citations

294 A.D.2d 746 (N.Y. App. Div. 2002)
741 N.Y.S.2d 757

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