| Matter of Stinson v Prack |
| 2011 NY Slip Op 06520 [87 AD3d 1218] |
| September 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Paul Stinson, Petitioner, v Albert Prack, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
During an investigation in which information was received from a confidential source, aninvestigator determined that petitioner was conspiring with others to smuggle drugs into thecorrectional facility. As a result, petitioner was charged in a misbehavior report with smugglingand conspiring to possess drugs. Following a tier III disciplinary hearing, he was found guilty ofthe charges and the determination was affirmed on administrative appeal. This CPLR article 78proceeding ensued.
We confirm. The misbehavior report, together with the hearing testimony of the investigatorwho prepared it, his confidential testimony and the recorded telephone conversations, providesubstantial evidence supporting the determination of guilt (see Matter of McFarlane v Fischer, 65 AD3d 769, 770 [2009]; Matter of Antinuche v Goord, 16AD3d 743, 744 [2005]). Contrary to petitioner's claim, the record establishes that theHearing Officer properly verified the reliability of the confidential source by interviewing andthoroughly questioning the investigator who spoke with this individual (see Matter of Rivera v Artus, 82 AD3d1431 [2011]; Matter of Ballou v New York State Dept. of Correctional Servs., 80AD3d [*2]1058, 1059 [2011]). Petitioner's denial of the chargespresented a credibility issue for the Hearing Officer to resolve (see Matter of Vidal-Ortiz v Fischer, 84AD3d 1627 [2011]; Matter of McFarlane v Fischer, 65 AD3d at 771). Moreover,insofar as petitioner claims that the misbehavior report did not provide him adequate notice ofthe charges because the date of the interview referenced therein was incorrect (see 7NYCRR 251-3.1 [c] [3]), this discrepancy was sufficiently explained by the author of the reportas a typographical error (see e.g. Matterof Horne v Fischer, 60 AD3d 1233 [2009]). Nor has petitioner demonstrated anyprejudice. Petitioner's remaining contentions, to the extent that they are properly before us, havebeen considered and are unavailing.
Peters, J.P., Spain, Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.