| Matter of Perez v Fischer |
| 2011 NY Slip Op 08266 [89 AD3d 1310] |
| November 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jesus Perez, Petitioner, v Brian Fischer, as Commissionerof Corrections and Community Supervision, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Washington County) to review a determination of respondent Commissioner of Correctionsand Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Correction officials learned through a confidential source that petitioner had threatened anotherinmate with a homemade weapon in the shower area. As a result, petitioner was charged in amisbehavior report with making threats and possessing a weapon. Following a tier III disciplinaryhearing, petitioner was found guilty of the charges and the determination was affirmed on administrativeappeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officers familiarwith the incident and the confidential information considered by the Hearing Officer in camera, providesubstantial evidence supporting the determination of guilt (see Matter of Vidal-Ortiz v Fischer, 84 AD3d 1627, 1628 [2011]; Matter of Rivera v Artus, 82 AD3d1431 [2011]). The contrary testimony of petitioner and his inmate witnesses presented a credibilityissue for the Hearing Officer to resolve (seeMatter of Jackson v Prack, 84 AD3d 1660, 1660[*2][2011];Matter of Barton v New York State Dept. ofCorrectional Servs., 81 AD3d 1029, 1030 [2011]). Although petitioner asserts that theHearing Officer failed to properly verify the credibility of the confidential informant, this claim is beliedby the record, which discloses that the Hearing Officer conducted an independent examination of thisindividual in camera (see Matter ofWashington v Fischer, 78 AD3d 1399, 1399-1400 [2010], lv denied 16 NY3d 707[2011]; Matter of Estevez v Fischer, 63AD3d 1402, 1403 [2009]). Petitioner's remaining contentions have not been preserved for ourreview due to his failure to raise them either at the hearing or in his administrative appeal.
Mercure, J.P., Peters, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.