                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522254
________________________________

In the Matter of THOMAS
   BUTTERFIELD,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 20, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Aarons, JJ.

                             __________


      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.
                              -2-                  522254

      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
AD3d 1462, 1462-1463 [2009]; Matter of Fitzpatrick v Goord, 269
AD2d 643, 644 [2000]; Matter of Washington v Coombe, 242 AD2d
795, 796 [1997]; Matter of Di Rose v New York State Dept. of
Correction, 228 AD2d 868, 868 [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 AD2d 572,
573 [2000]; Matter of Washington v Coombe, 242 AD2d at 796;
Matter of Di Rose v New York State Dept. of Correction, 228 AD2d
at 869). 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 AD3d 1058, 1058 [2012];
Matter of Di Rose v New York State Dept. of Correction, 228 AD2d
at 579). We have reviewed petitioner's remaining contentions and
find them to be without merit.

     Peters, P.J., Garry, Rose, Devine and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
