| Matter of Shabazz v Artus |
| 2010 NY Slip Op 03010 [72 AD3d 1299] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Raheem Shabazz, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
A confidential informant disclosed to correction officials that petitioner had taken propertybelonging to another inmate and had threatened that inmate with bodily harm. When petitioner'scell was searched, a lamp belonging to that inmate was recovered. As a result, he was charged ina misbehavior report with possessing stolen property, making threats and engaging in anunauthorized exchange. Following a tier III disciplinary hearing, he was found guilty ofpossessing stolen property and making threats. The determination was later affirmed onadministrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior report, testimony of thecorrection officer who prepared it and confidential information considered by the HearingOfficer in camera, supports the determination of guilt (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Hicks v Goord, 35 AD3d1000, 1000-1001 [2006], lv denied 8 NY3d 806 [2007]). Contrary to petitioner'sclaim, the Hearing Officer independently assessed the credibility and reliability of theconfidential informant by conducting a personal interview of [*2]that individual as well as the correction officer to whom theincident was reported (see Matter ofSamuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Toledo v Selsky, 12 AD3d 824, 825 [2004]).Furthermore, petitioner did not have a right to confront or cross-examine the confidentialinformant and, therefore, the Hearing Officer did not err in denying petitioner's request to callthis witness for reasons of institutional safety and security (see Matter of Alba v Goord, 6 AD3d 847, 847 [2004]; Matterof Tosca v Selsky, 298 AD2d 738, 739 [2002]). Petitioner's remaining contentions, includinghis claims related to the misbehavior report, have been considered and found to be unavailing.
Cardona, P.J., Peters, Malone Jr., Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.