| Matter of Hernandez v Selsky |
| 2008 NY Slip Op 03356 [50 AD3d 1340] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Rafael Hernandez, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 possessing a weapon and assaultinganother inmate. The charges stemmed from an incident wherein petitioner and others attackedanother inmate in the yard at the facility where they were incarcerated. A tier III disciplinaryhearing ensued, at the conclusion of which the Hearing Officer found petitioner not guilty of theweapons charge and guilty of assaulting another inmate, and a penalty of 12 months in the specialhousing unit, a corresponding loss of privileges and a recommended loss of good time of sixmonths was imposed. Following an unsuccessful administrative appeal, petitioner commencedthis proceeding seeking to annul the underlying determination.
We confirm. Contrary to petitioner's assertion, the misbehavior report, which recites the date,time and place of the incident, as well as the identity of the victim and the other inmatesinvolved, was sufficiently detailed to apprise petitioner of the charges against him and enablehim to prepare a defense (see Matter ofCampisi v Goord, 23 AD3d 730, 731 [2005]). Moreover, [*2]while the counselor who received the confidential information thatgave rise to the misbehavior report failed to endorse it, given that the counselor testified at thehearing, we discern no prejudice to petitioner (see Matter of Winbush v Goord, 6 AD3d 821, 822 [2004]).
Nor are we persuaded that the record as a whole is insufficient to support the finding thatpetitioner assaulted another inmate. Simply put, the misbehavior report, together with the hearingtestimony and confidential information, provide substantial evidence of petitioner's guilt (see Matter of Morillo v Goord, 38AD3d 947 [2007]). Equally unavailing is petitioner's assertion that the Hearing Officer failedto independently assess the confidential informant's credibility and reliability. The HearingOfficer personally interviewed the confidential informant and, the record reveals, adducedsufficient information to permit him to make the required assessment (see id. at 947; see also Matter of Rympalski v Goord,19 AD3d 960 [2005]). Petitioner's remaining contentions, including his assertion that thepenalty imposed was unduly harsh, have been examined and found to be lacking in merit.
Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.