                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    521028
________________________________

In the Matter of MALI
   WILKERSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   February 19, 2016

Before:   Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

                             __________


     Mali Wilkerson, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondent.

                             __________


Lynch, J.

      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.

      The superintendent of the correctional facility housing
petitioner received an anonymous letter accusing the
superintendent of being a co-conspirator to acts of violence
against inmates and indicating that the inmate population was not
going to tolerate such conduct any longer. Following an
investigation that included the comparison of letters written by
numerous inmates, it was determined that petitioner was the
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author of the letter. Petitioner was thereafter charged in a
misbehavior report with making threats, rioting, creating a
disturbance, harassment and violent conduct. Following a tier
III disciplinary hearing, petitioner was found not guilty of
rioting, but guilty of the remaining charges. That determination
was affirmed on administrative appeal and this CPLR article 78
proceeding ensued.

      We confirm. The misbehavior report, letter, petitioner's
handwriting samples and hearing testimony provide substantial
evidence to support the determination of guilt (see Matter of
Christian v Venettozzi, 114 AD3d 975, 975 [2014]; Matter of Logan
v Fischer, 109 AD3d 1043, 1043 [2013], lv denied 22 NY3d 856
[2013]). We note that the Hearing Officer, as the trier of fact,
was qualified to make an independent assessment of the letter and
the handwriting samples (see Matter of Logan v Fischer, 109 AD3d
at 1043; Matter of Davis v Fischer, 76 AD3d 1154, 1155 [2010]).

      Turning to petitioner's procedural issues, his request for
witnesses to support his claim of retaliation was properly denied
as redundant, in light of the other evidence submitted addressing
that issue (see Matter of Cahill v Prack, 106 AD3d 1310, 1311
[2013]; Matter of Rosales v Pratt, 98 AD3d 764, 765 [2012], lv
denied 19 NY3d 816 [2012]). The Hearing Officer also properly
denied petitioner's requests for DNA testing on the envelope that
contained the letter (see Matter of Johnson v Goord, 40 AD3d
1335, 1336 [2007]) and for an expert handwriting analysis of the
letter (see Matter of Ponder v Fischer, 56 AD3d 1094, 1094
[2008]).

      Regarding petitioner's contention that he was precluded
from preparing an appropriate defense due to being denied certain
documentary evidence, the record reflects that he submitted
requests for the documents pursuant to the Freedom of Information
Law (see Public Officers Law art 6 [hereinafter FOIL]). While
the requests were pending, the Hearing Officer provided
petitioner with a portion of the documents that he had sought.
The Hearing Officer also gave him an opportunity to adjourn the
hearing until the remaining requests were processed, but
petitioner declined. Additionally, although petitioner's request
for a copy of the anonymous letter was denied by the Hearing
                              -3-                521028

Officer, he was provided access to the letter at the hearing, and
the hearing was then adjourned to afford him more time to prepare
his defense. Accordingly, petitioner has not demonstrated that
the lack of the documentary evidence resulted in any prejudice in
preparing a defense (see Matter of Rosario v Annucci, 127 AD3d
1477, 1478 [2015]).

      As to petitioner's FOIL requests, inasmuch as the record
reflects that petitioner failed to exhaust his administrative
remedies regarding his December 10, 2013 request, our review of
that issue is precluded (see Matter of White v State of New York,
117 AD3d 1250, 1250-1251 [2014]). Further, petitioner's failure
to provide a copy of the alleged denial of a February 2, 2014
FOIL request precludes our review of those issues (see Matter of
Jones v Fischer, 110 AD3d 1295, 1296 n [2013], appeal dismissed
23 NY3d 955 [2014]). Finally, petitioner failed to timely
commence a CPLR article 78 proceeding seeking judicial review of
the denial of his administrative appeal regarding his December
19, 2013 FOIL request (see CPLR 217; Public Officers Law § 89 [4]
[a]; Matter of Van Steenburg v Thomas, 242 AD2d 802, 803 [1997],
lv denied 91 NY2d 803 [1997]). To the extent that they are
properly before us, petitioner's many remaining contentions,
including his challenge to the penalty imposed, have been
considered and found to be unpersuasive.

     Peters, P.J., Garry, Rose and Clark, JJ., concur.
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
