| Matter of Mitchell v Bezio |
| 2010 NY Slip Op 00623 [69 AD3d 1281] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dennis Mitchell, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Based upon information provided by confidential informants that petitioner was involved inan altercation with another inmate over the use of the housing unit television, petitioner wascharged in a misbehavior report with fighting, engaging in violent conduct, creating adisturbance and failing to promptly report an injury. Following a tier III disciplinary hearing,petitioner was found not guilty of failing to promptly report an injury and guilty of the remainingcharges. This determination was affirmed on administrative appeal, prompting this CPLR article78 proceeding.
We confirm. The misbehavior report, together with the hearing testimony and theconfidential testimony heard by the Hearing Officer in camera, provide substantial evidence tosupport the determination of guilt (seeMatter of McFarlane v Fischer, 65 AD3d 769, 770 [2009]). Contrary to petitioner'scontention, the record demonstrates that, although the Hearing Officer did not independentlyinterview the confidential informants, he made adequate inquiries of the correction officers whoreceived the information to ascertain its reliability (see Matter of [*2]Farrow v Prack, 57AD3d 1065, 1065 [2008], lv denied 12 NY3d 704 [2009]). Although petitionerdenied being involved in an altercation, this presented a credibility issue for the Hearing Officerto resolve (see Matter of Frazier vPrack, 62 AD3d 1185, 1186 [2009]). We also reject petitioner's contention that he wasdenied effective employee assistance, premised on the assistant's failure to obtain certaindocuments, as the documents requested either did not exist, were confidential or were irrelevant(see Matter of Cliff v Selsky, 293 AD2d 885, 885 [2002]). Finally, there is no indicationthat the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Stallone v Fischer, 65AD3d 1410, 1410-1411 [2009], lv denied 13 NY3d 712 [2009]).
Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.