| Matter of Estevez v Fischer |
| 2009 NY Slip Op 05052 [63 AD3d 1402] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Cirilo Estevez, 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 foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was served with a misbehavior report that charged him with fighting,threats, violent conduct, and possession of unauthorized organizational material and a weapon.The charges arose from the investigation of an altercation between fellow inmates. Following theincident, a search of the cell of one of the inmates revealed a letter, purportedly from members ofa gang, that directed the inmate to perform a "hit" on a member of a rival gang or facerepercussions. The investigation further revealed that petitioner provided a weapon to the inmateto use in performing the hit and, after the inmate refused, petitioner was involved with othermembers of the gang in assaulting the inmate. Following a tier III disciplinary hearing, petitionerwas found guilty on all charges. Following an unsuccessful administrative appeal, hecommenced this CPLR article 78 proceeding to challenge the determination of guilt.
We confirm. The determination of guilt is supported by substantial evidence in the form ofthe factually specific misbehavior report and the testimony of the correction officer whoauthored the report, along with the additional investigative reports and the testimony of aconfidential informant (see Matter ofFarrow v Prack, 57 AD3d 1065, 1065 [2008], lv denied 12 [*2]NY3d 704 [2009]; Matter of Fogan v Goord, 45 AD3d 1012, 1012 [2007]; Matter of Ermmarino v New York StateDept. of Correctional Servs., 43 AD3d 517, 517 [2007]). Contrary to petitioner'sassertion, the Hearing Officer, having personally interviewed the confidential informant, hadsufficient grounds upon which to make an independent assessment of his credibility (see Matter of Samuel v Fischer, 53AD3d 960, 960 [2008]; Matter ofMorillo v Goord, 38 AD3d 947, 947 [2007]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.