| Matter of Hill v Fischer |
| 2010 NY Slip Op 00358 [69 AD3d 1103] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert Hill, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.
A correction sergeant conducted an investigation into the circumstances under which aninmate had received two puncture wounds to the back of his head. He determined that petitionerhad inflicted the wounds through the use of a pen. As a result, petitioner was charged in amisbehavior report with assaulting an inmate, engaging in violent conduct and using a weapon.Following the reversal of a determination rendered after an initial tier III disciplinary hearingfinding petitioner guilty of the charges, a rehearing was conducted. Thereafter, petitioner wasagain found guilty of the charges and the determination was upheld on administrative appealwith a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of its author and theconfidential information considered by the Hearing Officer, provide substantial evidencesupporting the determination of guilt (see Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Toledo v Selsky, 12 AD3d824, 824-825 [2004]). Contrary to petitioner's claim, our review of the confidentialinformation discloses that there was adequate corroborative evidence and proof from which the[*2]Hearing Officer could independently assess the credibilityand reliability of such information (seeMatter of Fareedullah v Fischer, 64 AD3d 1024, 1026 [2009], lv denied 13NY3d 713 [2009]; Matter of Moore v Goord, 279 AD2d 682, 683 [2001]). Moreover,petitioner has failed to preserve his contention that the Hearing Officer did not make a sufficientinquiry into the reasons two inmate witnesses refused to testify inasmuch as such witnessesexecuted witness refusal forms and petitioner did not raise any objection at the hearing (see Matter of Tafari v Brown, 47AD3d 979 [2008], lv denied 10 NY3d 708 [2008]). Petitioner's remainingcontentions have either not been preserved for our review or are lacking in merit.
Peters, J.P., Spain, Kavanagh, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.