| Matter of Smith v Fischer |
| 2009 NY Slip Op 05926 [64 AD3d 1061] |
| July 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of Remus Smith, 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 Chemung County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
As the result of an investigation in which information was obtained from confidentialsources, correction officials learned that petitioner and two other inmates had planned a revolt totake place in the facility's mosque during religious services and had also threatened anotherinmate who openly opposed their plan. As a result, petitioner was charged in a misbehaviorreport with planning a demonstration, making threats and rioting. He was found guilty of thesecharges following a tier III disciplinary hearing and the determination was later affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the testimony of its author and the confidentialinformation considered by the Hearing Officer in camera provide substantial evidencesupporting the determination of guilt (see Matter of Walton v Selsky, 35 AD3d 923, 923 [2006]; Matter of Berry v Goord, 13 AD3d947, 947 [2004]). Contrary to petitioner's claim, our review of the record reveals that theHearing Officer undertook a thorough and independent assessment of the reliability of theconfidential informant through a personal interview with him (see Matter of Hernandez v Selsky, 50AD3d 1340, 1341 [2008]) as well as interviews with correction officials to whom heprovided information (see Matter ofStaton v Goord, 41 AD3d 1105, 1106 [2007]). [*2]Although the inmates and the correction officers who testified aswitnesses at the hearing denied overhearing petitioner planning a revolt or threatening anotherinmate, and petitioner also denied any such wrongdoing, this presented a credibility issue for theHearing Officer to resolve (see Matterof Perez v Dubray, 55 AD3d 1119 [2008]; Matter of Peana v Fischer, 54 AD3d 1126, 1127 [2008]).Petitioner's claims that the hearing was not timely completed and that the Hearing Officer wasbiased are not preserved for our review given his failure to raise them at the hearing (seeMatter of Soto-Rodriguez v Goord, 252 AD2d 782, 783 [1998]). Petitioner's remainingcontentions, to the extent that they are properly before us, are unavailing.
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.