Callender v. Selsky

Jul 15, 2004
Versions:9 A.D.3d 703
779 N.Y.S.2d 830
2004 N.Y. App. Div. LEXIS 9778

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Based upon information received from the victim, who was slashed with a razor blade, petitioner was found guilty of violating the prison disciplinary rules prohibiting assaults on inmates and fighting. Following an unsuccessful administrative appeal, this CPLR article 78 proceeding ensued.

To the extent that petitioner raises an issue of substantial evidence, the misbehavior report and victim’s testimony identifying petitioner as the perpetrator provide substantial evidence to support the determination of guilt (see Matter of Williams v Goord, 259 AD2d 793, 794 [1999]). There is no merit to petitioner’s challenge regarding the confidential information leading to the charges inasmuch as the identity of the confidential informant was revealed and he testified at the hearing. Furthermore, petitioner’s assertion that he was locked in his cell at the time of the assault created a credibility issue, which the Hearing Officer was free to resolve against petitioner (see Matter of Walton v Goord, 290 AD2d 764 [2002]).

Petitioner’s remaining contentions, including his assertion that he was improperly removed from the hearing, have been considered and found to be either without merit or unpreserved for our review.

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.