| Matter of Washington v Fischer |
| 2010 NY Slip Op 08411 [78 AD3d 1399] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Viscount Washington, 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 Supreme Court,entered in Albany County) to review a determination of respondent which found petitioner guilty ofviolating a prison disciplinary rule.
As the result of an ongoing investigation, petitioner, a prison inmate, was served with a misbehaviorreport charging him with drug possession and smuggling. Following a tier III disciplinary hearing, he wasfound guilty of drug possession. That determination was affirmed on administrative appeal, andpetitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the investigating officer, confidential reports andtestimony of the confidential informant who purchased marihuana from petitioner provide substantialevidence to support the determination of guilt (see Matter of Shabazz v Artus, 72 AD3d 1299, 1300 [2010]; Matter of Mitchell v Bezio, 69 AD3d1281, 1281 [2010]). Contrary to petitioner's assertion, the Hearing Officer made a properassessment of the confidential informant's reliability by conducting an independent examination incamera (see Matter of Parker v Fischer,70 AD3d 1086, 1087 [2010]). Additionally, contrary to his contention, petitioner had no right toaccess the confidential information (see Matter of Perretti v Fischer, 58 AD3d 999, 1002[2009], lv denied 12 NY3d 709 [2009]). We have examined petitioner's remaining contentionsand find them to be either unpreserved or without merit.[*2]
Mercure, J.P., Peters, Lahtinen, McCarthy and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.