| Matter of Norris v Fischer |
| 2010 NY Slip Op 01719 [71 AD3d 1211] |
| March 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Cordoza Norris, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
On December 6, 2008, petitioner refused a directive given by a female correction officer towear his shirt and then became verbally abusive toward her. Prior to this incident, in August andOctober 2008, petitioner repeatedly stared at the officer in a suggestive manner and made lewdgestures, notwithstanding the officer's instructions to stop this behavior. On December 9, 2008,the officer was informed that petitioner had made a derogatory comment about her, which shereported to a sergeant. An investigation ensued and petitioner was placed in keeplock. Throughthe investigation, it was revealed that petitioner told other inmates that he intended to fabricatestories about the officer for the purpose of having her fired in the event that she was responsiblefor his confinement. As a result of the foregoing, petitioner was charged in a misbehavior reportwith stalking, engaging in threatening behavior and harassment. He was found guilty of thecharges following a tier III disciplinary hearing and the determination was later affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Although petitioner contends that the incidents that occurred in August andOctober 2008 were not reduced to misbehavior reports "as soon as practicable" as prescribed[*2]by the applicable regulation (7 NYCRR 251-3.1 [a]), we findthat their inclusion in a later misbehavior report was timely, given that there had been anongoing investigation of his conduct and the report was promptly filed upon its completion (see Matter of Decastro v Prack, 62AD3d 1224, 1225 [2009]; Matter of Schultz v Goord, 301 AD2d 764, 765 [2003]).The misbehavior report, together with the hearing testimony and the evidence considered by theHearing Officer in camera, provide substantial evidence supporting the determination of guilt(see Matter of Nova v Selsky, 54AD3d 453, 454 [2008]; Matter ofHarris v Selsky, 9 AD3d 695, 695 [2004]). Contrary to petitioner's claim, the recorddiscloses that the Hearing Officer made the proper inquiry of the correction sergeant whoreceived the confidential information such as to verify the reliability and credibility of theconfidential informants (see Matter ofFarrow v Prack, 57 AD3d 1065, 1065 [2008], lv denied 12 NY3d 704 [2009];Matter of Catlin v GouverneurCorrectional Facility, 38 AD3d 1025, 1026 [2007]). The conflicting testimony ofpetitioner and his inmate witnesses presented a credibility issue for the Hearing Officer toresolve (see Matter of Griffith vSelsky, 53 AD3d 884 [2008]). Furthermore, there is no indication that the HearingOfficer was biased or that the determination at issue flowed from any alleged bias (see Matter of Kirby v Leclaire, 47AD3d 1174, 1175 [2008]). Petitioner's remaining contentions, to the extent that they havebeen preserved for our review, have been examined and found to be lacking in merit.
Cardona, P.J., Spain, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.