| Matter of Stallone v Fischer |
| 2009 NY Slip Op 06482 [65 AD3d 1410] |
| September 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jerome Stallone, 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 two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, received two misbehavior reports, one charging him with drugpossession and the other with drug use, and both arose from information provided byconfidential informants. The first report followed a search of petitioner's cell during whichmarihuana was discovered and the second report arose from a positive drug test of petitioner'surine. Following separate tier III disciplinary hearings before the same Hearing Officer,petitioner was found guilty of both charges. Following unsuccessful administrative appeals,petitioner commenced separate CPLR article 78 proceedings, which were consolidated bySupreme Court. We now confirm both determinations.
Substantial evidence, in the form of the misbehavior reports, the positive test results and thehearing testimony of the authors of said reports and other correction officers, support thedeterminations finding petitioner guilty of drug possession and drug use (see Matter of Batts v Fischer, 60AD3d 1129, 1129 [2009]; Matter of Davis v Prack, 58 AD3d 977, 977 [2009]).Turning to petitioner's procedural arguments, he was not entitled to question the confidentialinformants (see Matter of Griffith vSelsky, 32 AD3d 595, 596 [2006]; Matter of Alba v Goord, 6 [*2]AD3d 847, 847 [2004]). To the extent that petitioner also contendsthat the Hearing Officer was required to assess the veracity of the confidential informants, wereject that assertion because the determinations of guilt rested upon the discovery of marihuanain his cell and his positive drug test, respectively, and not from the confidential information (see Matter of Muller v Fischer, 62AD3d 1191, 1191-1192 [2009]; Matter of Parrilla v Selsky, 32 AD3d 1086, 1087 [2006], lvdenied 8 NY3d 803 [2007]). Finally, our review of the record reveals no evidence of hearingofficer bias or that the determinations flowed from such alleged bias (see Matter of Cannon v Fischer, 62AD3d 1109 [2009]; Matter ofParks v Smith, 49 AD3d 1123, 1124 [2008]).
We have examined petitioner's remaining contentions and, to the extent preserved, find themto be unavailing.
Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.