| Matter of Pisano v Fischer |
| 2011 NY Slip Op 06622 [87 AD3d 1247] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Angelo Pisano, 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 (1) a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules and (2) a determination of the TimeAllowance Committee withholding six months of petitioner's good time credit.
Following an investigation, during which information was received from confidential sourcesindicating that petitioner was selling marihuana in the correctional facility where he wasincarcerated, petitioner was charged in a misbehavior report with engaging in an unauthorizedexchange and selling drugs. The resulting tier III disciplinary hearing was reversed on proceduralgrounds and a rehearing was ordered. Following a rehearing on the charges contained in theoriginal misbehavior report, petitioner was found guilty and the determination was affirmed onadministrative appeal. The penalty included a recommended loss of six months of good time,which the Time Allowance Committee withheld in computing petitioner's conditional releasedate. Petitioner commenced this CPLR article 78 proceeding challenging the disciplinarydetermination, as well as the determination of the Time Allowance Committee.
We confirm. The misbehavior report, together with the testimony of the sergeant whoprepared it and the confidential information considered by the Hearing Officer in camera, providesubstantial evidence supporting the determination of guilt (see Matter of Washington v Fischer, 74 AD3d 1659, 1659 [2010];Matter of Rympalski v Goord, 19AD3d 960 [2005]). Contrary to petitioner's claim, the Hearing Officer properly conducted anindependent assessment [*2]of the reliability of the confidentialinformation received by questioning the correction sergeant involved in the investigation, as wellas a confidential source (see Matter ofAlba v Goord, 6 AD3d 847, 847 [2004]; Matter of Fernandez v Goord, 304AD2d 1005, 1005-1006 [2003]). Moreover, inasmuch as the misbehavior report was written asthe result of an ongoing investigation into the sale of marihuana at the facility and set forth thenature of the transactions as well as the particular rules violated, we find that the report as awhole provided petitioner with adequate notice of the charges to enable him to prepare a defense(see Matter of Catlin v GouverneurCorrectional Facility, 38 AD3d 1025, 1026 [2007]; Matter of Jackson v Smith, 13 AD3d 685, 685 [2004], lvdenied 4 NY3d 707 [2005]). Likewise, while petitioner complains that he was not givenadequate employee assistance, the record establishes that he received assistance after themisbehavior report initially was written, and any additional documents and/or witnesses herequested prior to the rehearing were provided by the Hearing Officer, thereby remedying anydeficiencies and alleviating any prejudice (see Matter of Lovett v Goord, 26 AD3d 563, 564 [2006]; Matter of Otero v Selsky, 9 AD3d631, 632 [2004]). Lastly, upon reviewing the record, we find no impropriety in the actions ofthe Time Allowance Committee in withholding petitioner's good time credit when computing hisconditional release date. Petitioner's remaining contentions are either unpreserved for our reviewor are lacking in merit.
Rose, J.P., Lahtinen, McCarthy, Garry and Egan Jr., JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.