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