Criminal Law · MBE-tested
In the Matter of Kevin Fitzpatrick, Petitioner, v. Glenn Goord, as Commissioner of the New York State Department of Correctional Services, Respondent
269 A.D.2d 643704 N.Y.S.2d 173·New York Supreme Court, Appellate Division·2000·NY
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Opinion
In the Matter of Kevin Fitzpatrick, Petitioner, v Glenn Goord, as Commissioner of the New York State Department of Correctional Services, Respondent.
[704 NYS2d 173]
—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 which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, serving a 60-month penalty for an escape, was found guilty of violating prison disciplinary rules prohibiting attempted smuggling, violation of facility correspondence procedures and an attempt or conspiracy to escape. The charges stemmed from a letter petitioner allegedly wrote to an acquaintance asking her to supply him with a handcuff key, a hacksaw blade and a rubber stamp marked “legal materials”. We conclude that the misbehavior report based upon the letter and petitioner’s own admission to authoring it provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Monko v Selsky, 244 AD2d 718, lv denied 91 NY2d 807). In view of petitioner’s previous attempt to escape and his request for a handcuff key and hacksaw blade, there was sufficient evidence to support a finding that he “intend [ed] to utilize the item[s] in an attempt to escape” (Matter of Rabi v LeFevre, 120 AD2d 875, 877; see, Matter of Alvarado v Goord, 252 AD2d 650).
Further, nothing in the record supports petitioner’s contention that the Hearing Officer was biased or that the outcome of the hearing flowed from such alleged bias (see, Matter of Monge v Goord, 251 AD2d 804; Matter of Applegate v Coombe, 237 AD2d 836, lv denied 90 NY2d 803). Petitioner’s remaining arguments have been considered and found to be without merit.
Mercure, J. P., Crew III, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.