Opinion
No. 507121.
February 11, 2010.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered March 26, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
Anthony Garraway, Moravia, appellant prose.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.
Petitioner was charged in a misbehavior report with making threats after he wrote a threatening letter to Broome County Child Protective Services concerning the manner in which that office had investigated allegations that his son had been abused by the child's stepfather. Following a tier III disciplinary hearing, petitioner was found guilty as charged. This determination was affirmed on administrative appeal, with a modified penalty. Following Supreme Court's dismissal of petitioner's CPLR article 78 proceeding, this appeal ensued.
We note that, inasmuch as the CPLR article 78 petition raises a question of substantial evidence, the proceeding should have been initially transferred to this Court. We therefore consider the issue de novo and render judgment accordingly ( see Matter of Parkinson v Selsky, 45 AD3d 1079, 1080 [2007]).
Initially, we find that the misbehavior report, together with the letter containing the threatening language and petitioner's admission that he wrote the letter, provide substantial evidence supporting the determination of guilt ( see Matter of Odom v Selsky, 58 AD3d 1060, 1061; Matter of Sloane v McKinney, 48 AD3d 850, 850). Moreover, the misbehavior report was sufficiently detailed to apprise petitioner of the charge against him and afford him an opportunity to prepare a defense ( see Matter of Arnold v Fischer, 60 AD3d 1177, 1177). We note that, although petitioner was apparently not shown a copy of the letter until his hearing, where it was read into the record, he has not demonstrated that he was prejudiced thereby in his ability to defend himself ( see Matter of Odom v Selsky, 58 AD3d at 1061).
Ordered that the judgment is affirmed, without costs.