| Matter of Houston v Fischer |
| 2010 NY Slip Op 00343 [69 AD3d 1086] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Stefan Houston, 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.
After it was discovered that petitioner had received over $800 in the mail from 17individuals in various states, an investigation was conducted and it was determined, despitepetitioner's denials, that the payments were for marihuana sold by him to fellow inmates. As aresult of the investigation, which included confidential information, petitioner was charged in amisbehavior report with interfering with an employee, giving false and misleading statementsand selling marihuana. He was found guilty of these charges following a tier III hearing, and thatdetermination was later affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, together with the testimony of its author, thedocumentary evidence and the confidential testimony considered by the Hearing Officer incamera, provide substantial evidence to support the determination of guilt (see Matter of Smith v Fischer, 64AD3d 1061, 1061-1062 [2009], lv denied 13 NY3d 712 [2009]). Althoughpetitioner denied selling marihuana and claimed at the hearing, as he did during theinvestigation, that the [*2]money he received was sent fromfriends of his brother, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Frazier v Prack, 62AD3d 1185, 1186 [2009]). Contrary to petitioner's contention, the fact that he was not foundin possession of marihuana does not require annulment of the determination, as sufficientcircumstantial evidence supporting the charges was presented at the hearing (see Matter of Santana v Selsky, 23AD3d 722, 723 [2005]). Finally, the reliability of the confidential informant was properlyestablished through the personal interview conducted by the Hearing Officer (see Matter of Adorno v Goord, 35AD3d 930, 931 [2006]).
Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.