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
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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