| Matter of Willacy v Fischer |
| 2009 NY Slip Op 07905 [67 AD3d 1099] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael J. Willacy, 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.
Following an investigation which indicated that petitioner had extorted money from otherprison inmates, petitioner was charged in a misbehavior report with violating prison disciplinaryrules prohibiting extortion and making threats. At the conclusion of a tier III disciplinaryhearing, petitioner was found guilty of both charges. This determination was affirmed onadministrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. Initially, we reject petitioner's contention that the misbehavior report wasinvalid due to its failure to provide specific dates, times and the names of the other inmatesinvolved. Inasmuch as the misbehavior report was the result of an ongoing investigation andbased upon confidential information, the lack of specific dates and times, as well as thewithholding of the names of the other inmates involved, was acceptable (see Matter of Blackwell v Goord, 12AD3d 816, 817 [2004]; Matter of Watkins v Goord, 307 AD2d 503, 504 [2003],appeal dismissed and lv denied 1 NY3d 532 [2003]). Moreover, the misbehavior report,as well [*2]as the confidential testimony and informationconsidered by the Hearing Officer in camera, provide substantial evidence in support ofpetitioner's guilt (see Matter of Arnold vFischer, 60 AD3d 1177, 1177 [2009]; Matter of Gallo v Fischer, 50 AD3d 1374, 1374 [2008]). Contraryto petitioner's contention, the Hearing Officer undertook a thorough and independent assessmentof the credibility of the confidential informants through personal interviews with them (see Matter of Sessoms v Commissioner ofCorrectional Servs., 63 AD3d 1400, 1400 [2009]) and the correction officer to whomthe information was provided (seeMatter of Staton v Goord, 41 AD3d 1105, 1106 [2007]). Finally, our review of thehearing transcript reveals that, although it does contain intermittent gaps, the gaps do not preventmeaningful judicial review (see Matterof Quinney v Selsky, 18 AD3d 1082, 1083 [2005]). Petitioner's remaining claims areeither unpreserved for our review or without merit.
Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.