| Matter of Butler v Fischer |
| 2010 NY Slip Op 05624 [74 AD3d 1651] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael Butler, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in St. Lawrence County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
As the result of an investigation, confidential information was received indicating thatpetitioner had made some homemade alcohol and requested another inmate to hide it in hislocker. After a correction officer recovered the alcohol from the locker and destroyed it,petitioner was charged with violating a prison disciplinary rule prohibiting inmates from makingalcoholic beverages. Following a tier III disciplinary hearing, petitioner was found guilty of thecharge. The determination was later affirmed on administrative appeal and this CPLR article 78proceeding ensued.
We confirm. The misbehavior report and related documentation, together with theconfidential testimony considered by the Hearing Officer in camera, provide substantial evidencesupporting the determination of guilt (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]; Matter of Sowell v Selsky, 43 AD3d1226 [2007], lv denied 10 NY3d 703 [2008]). Contrary to petitioner's claim, theHearing Officer independently assessed the reliability and credibility of the confidentialinformant through a detailed exchange with the sergeant who interviewed this individual (see Matter of Benston v Fischer, 67AD3d 1139, 1140 [2009]; Matterof Turner v Goord, 32 AD3d 1119, 1120 [2006], lv denied 8 NY3d 804 [2007]).[*2]Petitioner's remaining contentions, including his challenge tothe sufficiency of the misbehavior report, have not been preserved for our review.
Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.