| Matter of Phipps v Fischer |
| 2011 NY Slip Op 01768 [82 AD3d 1396] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kenyatta B. Phipps, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
Based upon an investigation, petitioner, a prison inmate, was identified as a gang memberwho was involved in a conspiracy to assault several prison guards. As a result, he was charged ina misbehavior report with gang activity, conspiring to commit an assault on staff and conspiringto participate in group violence, and he was found guilty of those charges after a tier IIIdisciplinary hearing. That determination was affirmed on administrative appeal, after whichpetitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, hearing testimony and confidential witness testimonyprovide substantial evidence to support the determination of guilt (see Matter of Sterling v Bezio, 76AD3d 1165, 1165 [2010]; Matter ofWilliams v Fischer, 75 AD3d 706 [2010], lv granted 15 NY3d 891 [2010]).Petitioner's claims that the charges against him were in retaliation for a grievance he filedpresented a credibility issue for the Hearing Officer to resolve (see Matter of Lamphear v Fischer, 76AD3d 1166, 1166 [2010]). The credibility of the confidential informant was established bythe Hearing Officer's review of the interview transcript and the inclusion of that transcript in thehearing record (see generally Matter ofWilliams v [*2]Fischer, 78 AD3d 1353, 1354 [2010],lv denied 16 NY3d 706 [2011]; Matter of Sanders v Haggett, 72 AD3d 1372, 1373 [2010]).Additionally, petitioner did not have the right to review the confidential information (see Matter of Washington v Fischer, 78AD3d 1399 [2010]; Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lvdenied 12 NY3d 709 [2009]).
Our review of the record reveals that the determination of guilt flowed from the evidencepresented, rather than any alleged hearing officer bias (see Matter of Lamphear v Fischer,76 AD3d at 1166; Matter of Hamilton vBezio, 76 AD3d 1125, 1126 [2010]). Finally, we find that the penalty assessed for theplanned assault on correction officers was not so disproportionate to the offense as to beshocking to one's sense of fairness (seeMatter of Smiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1150[2010]; Matter of Rivera v Goord,38 AD3d 964, 964-965 [2007]).
Petitioner's remaining contentions, to the extent preserved, have been reviewed anddetermined to be without merit.
Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.