Matter of Samuel v Fischer

2008 NY Slip Op 06409

Decided on July 24, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 24, 2008
503863



Calendar Date: June 11, 2008
Before: Cardona, P.J., Carpinello, Rose, Kavanagh and Stein, JJ.


Jamall Samuel, Auburn, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank
Brady of counsel), for respondents.


MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a fire in an inmate's cell which injured the inmate and damaged state property, investigating correction officers discovered information leading them to believe that petitioner had ordered another inmate to set the fire. As a result, he was charged in a misbehavior report with arson, assaulting an inmate and destroying state property. Petitioner was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the determination was affirmed with a modified penalty. This CPLR article 78 proceeding ensued.

Substantial evidence, consisting of the misbehavior report, the testimony of its author and the confidential information considered by the Hearing Officer in camera, support the determination of guilt (see Matter of Rivera v Goord, 38 AD3d 964, 964 [2007]; Matter of Walton v Selsky, 35 AD3d 923, 923 [2006]). "Contrary to petitioner's claim, the record discloses that the Hearing Officer independently verified the reliability of the information provided by the confidential informants by conducting a personal interview of one of the informants as well as the correction [officer] who interviewed them" (Matter of Morillo v Goord, 38 AD3d 947, 947 [2007] [citations omitted]; see Matter of Moore v Miller, 298 AD2d 776, 777 [2002]). [*2]Petitioner's claim that the Hearing Officer improperly failed to ascertain the reason for certain witnesses' refusals to testify is not preserved for our review inasmuch as he did not raise it at the hearing or on administrative appeal (see Matter of Mitchell v Goord, 28 AD3d 1039, 1040 [2006]; Matter of Early v Coughlin, 207 AD2d 588, 589 [1994]).

Cardona, P.J., Carpinello, Rose, Kavanagh and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.