| Matter of Horne v Fischer |
| 2012 NY Slip Op 05884 [98 AD3d 788] |
| August 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Reginald Horne, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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.
After a correction sergeant received confidential information that petitioner had a weapon inhis cell, his cell was searched and a broken toothbrush with a sharpened tweezer half taped to thehandle was discovered secreted between two boxes underneath petitioner's bed. As a result,petitioner was charged in a misbehavior report with possessing a weapon, possessing an altereditem and possessing contraband. He was found guilty of the charges following a tier IIIdisciplinary hearing and the determination was affirmed on administrative appeal. This CPLRarticle 78 proceeding ensued.
We confirm. Contrary to petitioner's claim, we do not find that there are significant gaps inthe hearing transcript that prevent meaningful review (see Matter of Povoski v Fischer, 93 AD3d 963, 964 [2012]; Matter of Fragosa v Moore, 93 AD3d979, 979 [2012]). The misbehavior report and related documentation, together with thetestimony of the correction officers involved in the search, provide substantial evidencesupporting the determination of guilt (see Matter of Alache v Fischer, 91 AD3d 1240, 1241 [2012]; Matter of Parra v Fischer, 76 AD3d724, 725 [2010], lv denied 15 NY3d 714 [2010]). While petitioner argues that theHearing Officer failed to independently assess the credibility of the confidential source, this wasnot necessary as the determination at issue was not based upon the confidential information butrather upon the evidence establishing that petitioner had a weapon in his cell (see Matter of Nimmons v Fischer, 68AD3d 1311 [2009]; Matter ofTerrence v Fischer, 64 AD3d 1110 [2009]). Likewise, as the report was sufficientlydetailed to give petitioner notice of the charges to enable him to prepare a defense, we rejectpetitioner's claim that the misbehavior report was defective because it failed to reference theconfidential information prompting the search (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]; Matter of Cody v Fischer, 84 AD3d1651, 1651 [2011]). Lastly, petitioner's claim of inadequate employee assistance has notbeen preserved for our review (seeMatter of Cespedes v New York State Dept. of Correctional Servs., 68 AD3d 1429,1430 [2009]).
Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur. A that thedetermination is confirmed, without costs, and petition dismissed.