| Matter of Cowan v Fischer |
| 2009 NY Slip Op 05663 [64 AD3d 839] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Antonio Cowan, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Peters, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondentCommissioner of Correctional Services which found petitioner guilty of violating certain prisondisciplinary rules.
Petitioner was charged in a misbehavior report with possessing an altered item, possessingproperty in an unauthorized area, possessing contraband, smuggling, property damage or lossand tampering with property, after a search of another inmate's cell disclosed a manila envelopecontaining a tape recorder, an altered microphone and electrical cord and one cassette tape.Petitioner admitted passing an envelope to the inmate in question but denied that it contained theseized items. Following a tier III disciplinary hearing, petitioner was found guilty of all chargesand a penalty was imposed. Petitioner's administrative appeal was unsuccessful, prompting himto commence this proceeding pursuant to CPLR article 78 to challenge the determination ofguilt.
We confirm. The confidential testimony and relevant videotape provide substantial [*2]evidence of petitioner's guilt (see Matter of Sylvester v Goord, 37 AD3d 888 [2007], lvdenied 8 NY3d 812 [2007]; Matterof Barclay v Goord, 23 AD3d 862 [2005], lv denied 6 NY3d 710 [2006]; Matter of Porter v Goord, 7 AD3d847, 848 [2004]). In this regard, petitioner freely admitted that he passed a manila envelopeto the inmate in question but contended that the envelope contained pornographic magazines, notthe prohibited or altered items confiscated from the inmate's cell. Such testimony, however,presented a credibility issue for the Hearing Officer to resolve, as did petitioner's claim that thereactually were two envelopes found in the subject cell—one containing the pornographicmaterials he admits to passing and the other containing the tape recorder, cassette and altereditems (see Matter of Donhauser vPrack, 60 AD3d 1126, 1127 [2009]; Matter of Davis v Prack, 58 AD3d 977[2009]).
As for the confidential testimony taken outside petitioner's presence, the record as a wholesupports the Hearing Officer's finding that permitting petitioner to review the informant'stestimony would reveal the informant's identity and jeopardize both the informant's safety andthe good order of the facility (see Matter of Pinargote v Berry, 147 AD2d 746, 748[1989], lv denied 74 NY2d 606 [1989]). Contrary to petitioner's assertion, the HearingOfficer was not required to inform petitioner prior to conducting the interview with theconfidential informant that such testimony would be taken. Rather, it was sufficient thatpetitioner was apprised of the informant's testimony and the reason such testimony was keptconfidential prior to the conclusion of the hearing (see Matter of Green v Coombe, 234AD2d 756, 757 [1996]; Matter of Odom v Kelly, 152 AD2d 1010, 1011 [1989];Matter of Pinargote v Berry, 147 AD2d at 748). Petitioner's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.