| Matter of Otero v Fischer |
| 2008 NY Slip Op 06766 [54 AD3d 1082] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Richard Otero, Petitioner, v Brian Fischer, 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 a prison disciplinary rule.
Following a tier III disciplinary hearing, petitioner was found guilty of assaulting two otherinmates. Upon administrative appeal, that determination was affirmed with a modified penalty.This CPLR article 78 proceeding by petitioner ensued.
We confirm. The determination of guilt is supported by substantial evidence in the form ofthe misbehavior report, photographs depicting blood and injuries on petitioner's hands andtestimony adduced at the hearing, including confidential testimony considered by the HearingOfficer in camera (see Matter of Ubaldov Leclaire, 46 AD3d 975 [2007]). Regarding the confidential information, the HearingOfficer was able to independently assess its reliability through his questioning of the counselorwho obtained the information from two confidential informants (see Matter of Witkowski v Goord, 45AD3d 1068, 1069 [2007]). Petitioner's remaining contentions, including his challenges tothe adequacy of the misbehavior report, have been considered and found to be unavailing.
Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.