                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517675
________________________________

In the Matter of DARNELL
   CREDELL,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   June 5, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


     Darnell Credell, New York City, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


Lynch, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent which found petitioner
guilty of violating a certain disciplinary rule.

      In February 2013, a facility teacher at the Bare Hill
Correctional Facility received, through facility mail, two
letters containing graphic and threatening content. Following an
investigation, a misbehavior report was issued charging
petitioner with harassment, threats of violence and threats.
Following a tier III disciplinary hearing, petitioner was found
guilty of all three charges and the determination was affirmed on
                              -2-                517675

administrative appeal. Petitioner then commenced this CPLR
article 78 proceeding challenging the determination.

      We confirm. The documentary evidence, including the two
letters and petitioner's handwriting samples, and the hearing
testimony of the investigator provide substantial evidence
supporting the determination of guilt (see Matter of Christian v
Venetozzi, 114 AD3d 975, 975 [2014]; Matter of Logan v Fischer,
109 AD3d 1043, 1043 [2013], lv denied 22 NY3d 856 [2013]; Matter
of Smith v Fischer, 108 AD3d 987, 988 [2013]). The record
demonstrates that the Hearing Officer properly conducted her own
handwriting analysis after examining the letters and comparing
them to the exemplars of petitioner's handwriting (see Matter of
Christian v Venetozzi, 114 AD3d at 975; Matter of Logan v
Fischer, 109 AD3d at 1043; Matter of Smith v Fischer, 108 AD3d at
988). Further, petitioner's insistence that he did not write the
letters created an issue of credibility for the Hearing Officer
to resolve (see Matter of Christian v Venetozzi, 114 AD3d at 975;
Matter of Smith v Fischer, 108 AD3d at 988).

      Petitioner's claim that he was denied his right to call a
witness is without merit since the testimony he sought from her
was not material or relevant to the charges (see Matter of Burr v
Fischer, 95 AD3d 1538, 1538-1539 [2012], lv denied 19 NY3d 811
[2012]; Matter of Tafari v Fischer, 94 AD3d 1324, 1325 [2012], lv
denied 19 NY3d 807 [2012]; 7 NYCRR 254.5 [a]). Moreover, the
record does not support petitioner's contention that the Hearing
Officer relied upon confidential information in rendering her
determination (compare Matter of Collins v Fischer, 89 AD3d 1355,
1356 [2011], lv denied 19 NY3d 803 [2012]). Petitioner's
remaining claims have been examined and found to be unpreserved
or without merit.

     Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur.
                              -3-                  517675

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
