| Matter of Benston v Fischer |
| 2009 NY Slip Op 08101 [67 AD3d 1139] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Maurice Benston, 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 a physical altercation between petitioner and another inmate, a confidentialinformant disclosed to a correction officer that petitioner was affiliated with a gang and that thealtercation occurred because the other inmate was a rival gang member who had disrespectedpetitioner. In response, the correction officer interviewed petitioner and petitioner denied anygang affiliation. Petitioner was thereafter charged in two misbehavior reports. The first chargedhim with refusing a direct order, creating a disturbance, fighting and assault. The second chargedhim with engaging in unauthorized organizational activities and making a false statement. Acombined tier III disciplinary hearing covering both misbehavior reports was thereafter held. Atthe conclusion of the hearing, petitioner was found guilty of all charges except fighting.Although the determination was modified on administrative appeal and certain charges weredismissed, that part of the determination finding petitioner guilty of engaging in unauthorizedorganizational activities was upheld. This CPLR article 78 proceeding ensued.
Petitioner's sole challenge is to that part of the determination finding him guilty of engagingin unauthorized organizational activities. As to this charge, the second misbehavior [*2]report, the testimony of the sergeant who authored it and theconfidential information considered by the Hearing Officer in camera provide substantialevidence supporting the determination of guilt (see Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Garner v Selsky, 47 AD3d1167, 1167 [2008]). Although the Hearing Officer did not personally interview theconfidential informant, "the record indicates that the Hearing Officer independently assessed thereliability of the confidential informant through a detailed exchange between himself and thesergeant who interviewed the informant" (Matter of Staton v Goord, 41 AD3d 1105, 1106 [2007]; see Matter of Plowden v Bunn, 38AD3d 1107, 1108 [2007]). Insofar as petitioner denied any gang affiliation, this presented acredibility issue for the Hearing Officer to resolve (see Matter of Garner v Selsky, 47AD3d at 1167). Petitioner's challenge to the sufficiency of the misbehavior report has not beenpreserved for our review given his failure to raise it at the disciplinary hearing (see Matter of Sessoms v Commissioner ofCorrectional Servs., 63 AD3d 1400, 1400 [2009]).
Mercure, J.P., Peters, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.