| Matter of Britt v Fischer |
| 2008 NY Slip Op 06771 [54 AD3d 1087] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of William Britt, 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 certain prison disciplinary rules.
During the investigation of a cube fire, confidential information was disclosed implicatingpetitioner and another inmate as the individuals who directed a third inmate to set the fire whichresulted in minor injuries to another inmate. As a result, petitioner was charged in a misbehaviorreport with assaulting an inmate, damaging state property and conspiring to start a fire. Followinga tier III disciplinary hearing, he was found guilty of the charges. The determination was affirmedon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the testimony of its author and the confidentialinformation considered by the Hearing Officer in camera provide substantial evidence supportingthe determination of guilt (see Matter ofBerry v Goord, 13 AD3d 947 [2004]; Matter of Rodriguez v Herbert, 270 AD2d889, 890 [2000]). Contrary to petitioner's claim, the Hearing Officer adequately ascertained theconfidential informant's reliability by conducting an independent examination in camera (seeMatter of Berry v Goord, 13 AD3d at 947). Petitioner's denial of wrongdoing presented acredibility issue for the Hearing Officer to resolve (see Matter of Fontaine v Superintendent of Southport CorrectionalFacility, 35 AD3d 1113, 1114 [2006], lv [*2]dismissed 8 NY3d 943 [2007]). Inasmuch as petitioner's claimof hearing officer bias was not raised in his administrative appeal, it has not been preserved forour review (see Matter of Holmes vBrown, 43 AD3d 1234, 1235 [2007], lv denied 9 NY3d 815 [2007]; Matter of Newsome v Selsky, 26 AD3d565, 566 [2006]).
Mercure, J.P., Carpinello, Rose, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.