| Matter of Williams v Fischer |
| 2010 NY Slip Op 08037 [78 AD3d 1353] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eric Williams, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 Supreme Court,entered in Clinton County) to review a determination of respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
After correction officers received confidential information that petitioner was executing an escapeplan to tunnel his way out of Clinton Correctional Facility in Clinton County, an investigation revealed abox in the yard containing a false bottom, digging implements and a bag filled with dirt, and, underneaththe box, a four-inch-deep hole covered with flat paving rocks. As a result, petitioner was served with amisbehavior report charging him with attempted escape and creating a disturbance. He was found guiltyof both charges following a tier III disciplinary hearing and, following an unsuccessful administrativechallenge, petitioner commenced this CPLR article 78 proceeding.
We confirm. To the extent that petitioner challenges the basis for the finding of guilt, themisbehavior report, the photographs and the testimony and confidential memorandum from thecorrection officer who investigated the incident and authored the report provide substantial evidence tosupport the determination (see Matter ofVargas v Selsky, 69 AD3d 1078, 1078 [2010]; Matter of Otero v Fischer, 54 AD3d 1082 [2008]). Contrary topetitioner's contention, it was not necessary for the Hearing Officer to personally interview theconfidential informant because the officer who conducted the investigation provided sufficientinformation for the [*2]Hearing Officer to make an independentassessment of the informant's credibility (seeMatter of Norris v Fischer, 71 AD3d 1211, 1212 [2010]; Matter of Profitt v Goord, 34 AD3d1136, 1137 [2006]). Further, while it appears that part of the transcript was erased due tooperator error, we find that the minor gap does not prevent meaningful judicial review (see Matter of Sanders v Haggett, 72 AD3d1372, 1373 [2010]; Matter of Abreu vBezio, 71 AD3d 1341, 1342 [2010], appeal dismissed 15 NY3d 836 [2010]).Finally, our review of the record demonstrates that the determination of guilt was based upon theevidence presented at the hearing, rather than any alleged hearing officer bias (see Matter of Key v Fischer, 72 AD3d1365, 1366 [2010]).
We have examined petitioner's remaining contentions and find them to be without merit.
Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.