| Matter of Kirby v Leclaire |
| 2008 NY Slip Op 00591 [47 AD3d 1174] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Andre Kirby, Petitioner, v Lucien J. Leclaire, Jr., asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
An investigation revealed that petitioner, a prison inmate, asked his wife to bring marihuanaand DVDs into the facility during a visit. When she subsequently arrived at the facility for thevisit, several DVDs were confiscated from her, but she did not have any marihuana with her. Asa result, petitioner was found guilty following a tier III disciplinary hearing of attempting topossess marihuana and soliciting another to smuggle DVDs. The determination was affirmed onadministrative appeal with a modified penalty and this CPLR article 78 proceeding ensued.
We confirm. Substantial evidence in the form of the detailed misbehavior report, a writtenstatement from petitioner's wife and testimony adduced at the hearing, including confidentialtestimony considered by the Hearing Officer in camera, support the determination of guilt (see Matter of Reddick v Goord, 43AD3d 503, 503 [2007]; Matter ofTurner v Goord, 32 AD3d 1119, 1120 [2006], lv denied 8 NY3d 804 [2007]).Contrary to petitioner's assertion, the Hearing Officer was not required to independently assessthe credibility of the confidential [*2]informant who triggered theinvestigation inasmuch as the finding of guilt was based upon evidence independent of suchconfidential information (see Matter ofFilpo v Goord, 37 AD3d 891, 892 [2007]). Likewise, the record does not substantiatepetitioner's claim that the Hearing Officer was biased nor is there any indication that thedetermination flowed from any alleged bias (see Matter of Lewis v Goord, 43 AD3d 1259, 1259 [2007]).Petitioner's remaining contentions, to the extent not specifically addressed herein, have beenexamined and found to be unavailing.
Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.