| Matter of Moore v Fischer |
| 2009 NY Slip Op 05050 [63 AD3d 1401] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Isham Moore, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh 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 foundpetitioner guilty of violating certain prison disciplinary rules.
Based on information provided by a confidential informant, a mail and phone watch wereinitiated through which information was uncovered that petitioner, a prison inmate, was engagedin a scheme to smuggle heroin and marihuana into the correctional facility in which he washoused. In January 2008, a visitor to the facility was questioned and surrendered a quantity ofdrugs, admitting that she had corresponded with petitioner and was smuggling the drugs for him.Following a tier III disciplinary hearing, petitioner was found guilty of drug possession andsmuggling. After an unsuccessful administrative appeal, petitioner commenced this CPLR article78 proceeding to challenge the determination of his guilt.
To the extent that petitioner challenges the basis for the determination of guilt, we find thatthe misbehavior report, the copies of petitioner's letters, his admissions at the hearing and thetestimony of the investigator provide substantial evidence to support said determination (see Matter of Ponder v Fischer, 56AD3d 1094, 1094 [2008]; Matterof Cortorreal v Goord, 41 AD3d 1048, 1048 [2007]).
Petitioner contends that there was no evidence that a mail watch was authorized by the [*2]Superintendent of the facility pursuant to 7 NYCRR 720.3. Wenote that this issue was not preserved for our review inasmuch as petitioner failed to challengethe legitimacy of the mail watch during the hearing (see Matter of Smith v Dubray, 58AD3d 968, 969 [2009]; Matter ofFrazier v Artus, 40 AD3d 1288, 1288 [2007]). In any event, the testimony of theinvestigating officer established the authorization for the mail watch and, thus, a copy of thewritten authorization was unnecessary (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]; Matter of Knight v McGinnis, 10AD3d 754, 755 [2004]). Finally, we find that there was no requirement that the HearingOfficer assess the credibility of the confidential informant who prompted the investigation,inasmuch as the finding of petitioner's guilt was based upon evidence independent of theconfidential information that was provided (see Matter of Kearney v Fischer, 51 AD3d 1185, 1186 [2008]; Matter of Kirby v Leclaire, 47 AD3d1174, 1175 [2008]).
We have examined petitioner's remaining arguments and find them to be unpersuasive.
Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.