Harris v. Selsky

Jul 15, 2004
Versions:9 A.D.3d 695
780 N.Y.S.2d 94
2004 N.Y. App. Div. LEXIS 9773

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.

According to a misbehavior report, petitioner was identified by a confidential source as the one who set fire to another inmate’s mattress and stole some of the inmate’s belongings. Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit starting fires and stealing property.* After an unsuccessful administrative review, petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt.

The misbehavior report, testimony at the hearing and confidential information provide substantial evidence to support the determination finding petitioner guilty of the charges (see Matter of Tam v Goord, 284 AD2d 694 [2001]). Our review of *696the in camera transcript belies petitioner’s contention that the Hearing Officer failed to make an independent assessment of the confidential informant’s credibility, as it discloses that the Hearing Officer personally interviewed the confidential informant and sufficiently assessed the credibility and reliability of the information provided (see Matter of Gutierrez v Selsky, 294 AD2d 641, 642 [2002]; Matter of Petty v Selsky, 289 AD2d 859, 860 [2001], lv denied 98 NY2d 602 [2002]).

Petitioner’s contention that he was denied adequate employee assistance was not raised on administrative appeal and, therefore, is not preserved for our review (see Matter of Corona v New York State Dept. of Correctional Servs., 2 AD3d 1118 [2003]; Matter of Lee v Goord, 285 AD2d 716 [2001]).

Mercure, J.P, Spain, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Notes

Petitioner was also charged with extortion, however, that charge was administratively dropped and not considered at the hearing.