| Matter of Ross v Selsky |
| 2008 NY Slip Op 02534 [49 AD3d 1065] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Charles Ross, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with conspiring to introduce drugs andsoliciting others to smuggle drugs into the facility at which he was incarcerated. At theconclusion of the tier III disciplinary hearing that followed, petitioner was found guilty and apenalty of 36 months in the special housing unit, a corresponding loss of privileges and arecommended 24 months of loss of good time was imposed. Upon administrative review, theperiod of confinement to the special housing unit was reduced to 12 months. Petitioner thereaftercommenced this proceeding, subsequently transferred to this Court, seeking to annul theunderlying determination.
We confirm. Contrary to petitioner's assertion, the confidential information received intoevidence at the hearing was sufficiently detailed to permit the Hearing Officer to independentlyassess its credibility and reliability (see Matter of Watkins v Goord, 307 AD2d 503, 504[2003], appeal dismissed and lv denied 1 NY3d 532 [2003]). Such information, in turn,coupled with the misbehavior report, the testimony of the senior investigating officer and thetaped telephone conversation between petitioner and another, provides substantial evidence to[*2]support the findings of guilt (see id.).
As to petitioner's procedural objections, his claim that he was denied the right to callwitnesses and present documentary evidence, as well as his assertion that there was aninsufficient foundation laid for the introduction of certain drug test results, were not raised at thedisciplinary hearing and, hence, are not preserved for our review (see Matter of Frazier v Artus, 40 AD3d1288 [2007]). In any event, the record reveals such claims to be meritless. Finally, withregard to the adequacy of the misbehavior report, we find that it was sufficient to apprisepetitioner of the charges against him and enable him to prepare a defense. In view of the concernsfor institutional safety and the nature of the ongoing investigation, the investigator's failure toidentify all of the alleged coconspirators and each date upon which they allegedly conspired didnot render it defective (see Matter ofJackson v Smith, 13 AD3d 685 [2004], lv denied 4 NY3d 707 [2005];Matter of Watkins v Goord, 307 AD2d at 504; Matter of Mays v Goord, 285AD2d 847, 848 [2001], lv denied 97 NY2d 603 [2001]). Accordingly, the underlyingdetermination is confirmed.
Peters, J.P., Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.