| Matter of Fareedullah v Fischer |
| 2009 NY Slip Op 05896 [64 AD3d 1024] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Nawabi Fareedullah, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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.
An investigation revealed that petitioner, a prison inmate, had conspired with other inmatesat Arthur Kill Correctional Facility in Richmond County to gain a leadership role over thefacility's Muslim community. Petitioner was found guilty after a tier III disciplinary hearing of,among other things, violating the prison disciplinary rules that prohibit making threats,attempting to create an unauthorized organization and urging other inmates to participate in ademonstration. That determination was administratively affirmed, and this CPLR article 78proceeding ensued.
Initially, we reject petitioner's assertion that the misbehavior report was insufficient toprovide him with specific dates, times and places regarding the charges (see Matter ofSheppard v Goord, 292 AD2d 694, 695-696 [2002]). Inasmuch as the charges resulted froman ongoing investigation, it was sufficient for the misbehavior report to set forth the rulesdetermined to have been violated, the particulars of the incident giving rise to the violations anda time period during which said incidents occurred, all of which served to provide petitioner withenough particulars to make an effective response (see Matter of Abdur-Raheem v Mann,85 NY2d 113, 123 [1995]; Matter ofLamage v Selsky, 47 AD3d 1144, 1146 [2008]; Matter of Dolan v Goord, 41AD3d [*2]1119, 1119-1120 [2007]; Matter of Ellis v Selsky, 29 AD3d1254 [2006]).
We further find that respondent's determination was supported by substantial evidence.Specifically, among the evidence presented at the hearing was information from confidentialinformants and the misbehavior report relating that documents containing threatening statementsagainst the civilian chaplain were discovered in petitioner's personal property as well ascorroborating testimony from the civilian chaplain, the correction officers involved in theinvestigation and petitioner himself (see Matter of Moore v Goord, 279 AD2d 682[2001]; Matter of Velez v Goord, 262 AD2d 906 [1999]).
To the extent that petitioner denies engaging in the conduct forming the basis for thedisciplinary rule violations, credibility issues were created for resolution by the Hearing Officer(see Matter of Koehl v Artus, 56AD3d 918 [2008], lv denied 12 NY3d 754 [2009]; Matter of Harvey v Woods, 53 AD3d944 [2008]; Matter of Jones vGoord, 50 AD3d 1427, 1428 [2008]). Furthermore, a review of the in cameraconfidential testimony reveals that there was sufficient proof and corroborating evidence for theHearing Officer to independently assess the credibility of the confidential informants (seeMatter of Moore v Goord, 279 AD2d at 682; Matter of Sanabria v Senkowski, 274AD2d 799 [2000]).
Petitioner's remaining contentions have been examined and found to be unavailing.
Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.