| Matter of Sessoms v Commissioner of Correctional Servs. |
| 2009 NY Slip Op 05049 [63 AD3d 1400] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gary Sessoms, Petitioner, v Commissioner ofCorrectional Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
As the result of an investigation during which correction officials monitored telephoneconversations that petitioner had with his wife, petitioner was charged in a misbehavior reportwith conspiring to introduce drugs into the correctional facility and soliciting another to smuggledrugs into the facility. He was found guilty of the charges at the conclusion of a tier IIIdisciplinary hearing. After the determination was upheld on administrative appeal, petitionercommenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of its author and theconfidential testimony considered by the Hearing Officer in camera, provide substantial evidencesupporting the determination of guilt (see Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Toledo v Selsky, 12 AD3d824, 824-825 [2004]). Contrary to petitioner's claim, the reliability of the confidentialinformant was properly established through the personal interview conducted by the HearingOfficer (see Matter of Nova vSelsky, 54 AD3d 453, 454 [2008]; Matter of Adorno v Goord, 35 AD3d 930, 931 [2006]). Petitioner'sclaim that the misbehavior report did not provide adequate notice of the charges is unpreservedfor our review given his [*2]failure to raise it at the hearing (see Matter of Tafari v Selsky, 41AD3d 1117, 1117 [2007], lv denied 9 NY3d 809 [2007]). Although petitioner alsofailed to preserve his challenge to the sufficiency of the hearing transcript, were we to considerit, we would not find that the missing portion is so significant as to prevent meaningful review(see Matter of Pineda v Goord, 35AD3d 977 [2006]).
Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.