Opinion
11-10-2016
In the Matter of Thomas BUTTERFIELD, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
James Bogin, Prisoners' Legal Services of New York, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
James Bogin, Prisoners' Legal Services of New York, Albany, for petitioner.
Eric T. Schneiderman, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with escape and violating facility correspondence procedure. The charges stem from a letter that petitioner mailed from the correctional facility to his fiancée stating that he was on the call-out sheet and, if he was called for outside clearance work, he plans to “bolt into the woods.” Following a tier III disciplinary hearing, petitioner was found guilty of both charges and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, the misbehavior report, the letter that petitioner acknowledged he wrote and the testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Anderson v. Fischer, 63 A.D.3d 1462, 1462–1463, 880 N.Y.S.2d 867 [2009] ; Matter of Fitzpatrick v. Goord, 269 A.D.2d 643, 644, 704 N.Y.S.2d 173 [2000] ; Matter of Washington v. Coombe, 242 A.D.2d 795, 796, 662 N.Y.S.2d 147 [1997] ; Matter of Di Rose v. New York State Dept. of Correction, 228 A.D.2d 868, 868, 644 N.Y.S.2d 577 [1996] ). Despite the fact that petitioner did not actually escape, the information set forth in the letter regarding petitioner's escape plan was properly considered as an attempt within the prison disciplinary context (see 7 NYCRR 270.3 [B][1]; Matter of Lott v. Goord, 273 A.D.2d 572, 573, 710 N.Y.S.2d 557 [2000] ; Matter of Washington v. Coombe, 242 A.D.2d at 796, 662 N.Y.S.2d 147 ; Matter of Di Rose v. New York State Dept. of Correction, 228 A.D.2d at 869, 644 N.Y.S.2d 577 ). Petitioner's testimony that the escape plan set forth in the letter was a farce presented a credibility issue for the Hearing Officer to resolve (see Matter of Gallagher v. New York State Dept. of Correctional Servs., 93 A.D.3d 1058, 1058, 940 N.Y.S.2d 697 [2012] ; Matter of Di Rose v. New York State Dept. of Correction, 228 A.D.2d at 579, 644 N.Y.S.2d 748 ). We have reviewed petitioner's remaining contentions and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., GARRY, ROSE, DEVINE and AARONS, JJ., concur.