| Matter of Ballou v New York State Dept. of CorrectionalServs. |
| 2011 NY Slip Op 00329 [80 AD3d 1058] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Christian Ballou, Petitioner, v New York StateDepartment 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 Albany County) to review two determinations of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, had an item stolen from his "cube" and allegedly enlisted otherinmates, affiliated with a gang, to help him recover it. Although the property was returned,petitioner did not inform the gang members before they confronted the alleged thief in the yard,leading to a disturbance and subsequent confrontation with petitioner. As a result, petitioner wasissued the first of two misbehavior reports at issue in this proceeding, charging him with fighting,violent conduct, causing a disturbance, gang activity and assault on an inmate. Following a tierIII disciplinary hearing, petitioner was found guilty of all charges. In addition, while beingescorted by a correction officer to be interviewed about the events giving rise to the charges,petitioner became loud and disorderly. Petitioner ignored several direct orders to keep quiet andstated to the officer, "you don't know who you['re] talking to, you better check my record." As aresult, petitioner received a second misbehavior report, and was found guilty following a tier IIIdisciplinary hearing of refusing a direct order and making threats. His administrative appealsproved unavailing, and petitioner commenced this CPLR article 78 proceeding to challenge thedeterminations.[*2]
Initially, respondent concedes that the charge of fightingcontained in the first misbehavior report is not supported by substantial evidence and, therefore,must be annulled (see Matter ofValentino v Bezio, 72 AD3d 1376, 1376 [2010]; Matter of Argentina v Bezio, 69 AD3d 1287, 1288 [2010], lvdenied 14 NY3d 709 [2010]). Furthermore, because a loss of good time was recommended,the matter must be remitted to respondent for a redetermination of the penalty (see Matter of Platten v Bezio, 73 AD3d1419, 1420 [2010]; Matter of Argentina v Bezio, 69 AD3d at 1288).
With regard to the remaining charges contained in the first misbehavior report, the reportitself, the testimony of the correction officer who authored the report, the supportingdocumentation and the confidential information considered provide substantial evidence tosupport the determination (see Matter ofElliott v Fischer, 73 AD3d 1366, 1366-1367 [2010]; Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]). Contrary topetitioner's contention, the Hearing Officer properly assessed the reliability of the confidentialinformants by making sufficient inquiry of the correction officers who received the information(see Matter of Sanders v Haggett,72 AD3d 1372, 1373 [2010]; Matter of Farrow v Prack, 57 AD3d 1065, 1065 [2008], lvdenied 12 NY3d 704 [2009]). A differing version of events offered at the hearing presented acredibility issue to be resolved by the Hearing Officer (see Matter of Perez v Bezio, 76 AD3d 1134 [2010]).
Turning to the second misbehavior report, the determination of guilt is supported bysubstantial evidence in the form of the report itself and the testimony of its author, the correctionofficer involved in the incident (seeMatter of Hernandez v Bezio, 73 AD3d 1406, 1407 [2010]; Matter of Brown v Fischer, 72 AD3d1320, 1321 [2010]). The slight inconsistency in the timing of events as related by thecorrection officer raised another credibility question to be resolved by the Hearing Officer(see Matter of Valentino v Bezio, 72 AD3d at 1377). Finally, the record reveals that thedetermination of guilt resulted from the evidence presented against petitioner, rather than anyalleged hearing officer bias (see Matterof Lamphear v Fischer, 76 AD3d 1166, 1166 [2010]; Matter of Hamilton v Bezio, 76 AD3d1125, 1126 [2010]).
We have examined petitioner's remaining contentions and have found them to be eitherunpreserved or without merit.
Mercure, J.P., Peters, Rose, Stein and Garry, JJ., concur. Adjudged that the June 9, 2009determination is modified, without costs, by annulling so much thereof as found petitioner guiltyof fighting and imposed a penalty; petition granted to that extent, the Commissioner ofCorrectional Services is directed to expunge all references thereto from petitioner's institutionalrecord and matter remitted to the Commissioner of Correctional Services for an administrativeredetermination of the penalty on the remaining violations; and, as so modified, confirmed.Adjudged that the June 15, 2009 determination is confirmed, without costs, and petitiondismissed to that extent.