| Matter of Parker v Fischer |
| 2010 NY Slip Op 00755 [70 AD3d 1086] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony Parker, 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.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rulesprohibiting engaging in sexual acts and requiring compliance with facility visitation procedures.The charges stemmed from petitioner being observed engaging in a sexual act with his wifeduring visitation. At a tier III disciplinary hearing, petitioner was found guilty of both charges.This determination was affirmed upon administrative review, although the penalty imposed wasreduced. This CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the determination of guilt is supported bysubstantial evidence in the form of the misbehavior report, together with the hearing testimonyof the correction officer who authored it, the testimony of the correction officers present at thescene and the confidential testimony considered by the Hearing Officer in camera (see Matter of Gonzalez v Prack, 62AD3d 1220, 1220 [2009], lv denied 13 NY3d 711 [2009]; Matter of Odom vSelsky, 58 AD3d 1060, 1061 [2009]). Moreover, the Hearing Officer properly assessed thereliability of the confidential informant by conducting an independent examination in camera (see Matter of Estevez v Fischer, 63AD3d 1402, 1403 [2009]; Matterof Britt v [*2]Fischer, 54 AD3d 1087, 1087 [2008]).
We also reject petitioner's contention that he was denied the right to reply to evidenceagainst him due to not having access to a videotape of the incident, as evidence was presented atthe hearing that no such videotape existed (see Matter of Ferrar v Selsky, 1 AD3d 671, 672 [2003]). Therecord further establishes that, although the correction officer monitoring the cameras located inthe visitation area arguably failed to follow proper procedure by not recording the incident, thefailure to make the recording was not done in bad faith (see Matter of Harris v Selsky,236 AD2d 723, 724 [1997]; cf. Matter of Espinal v Coughlin, 149 AD2d 904, 905[1989]). Finally, the Hearing Officer's status as officer of the day at the time of the incident doesnot disqualify him from presiding over the hearing (see Matter of Wells v Selsky, 282AD2d 799, 800 [2001]) and we find no evidence that the Hearing Officer was biased or that thedetermination flowed from any bias (seeMatter of Stallone v Fischer, 65 AD3d 1410, 1410-1411 [2009], lv denied 13NY3d 712 [2009]).
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.