Hernandez v. Goord

Jun 13, 2002
Versions:295 A.D.2d 737
743 N.Y.S.2d 336
2002 N.Y. App. Div. LEXIS 6161

—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 respondent which found petitioner guilty of violating a prison disciplinary rule.

*738Petitioner was found guilty of violating the prison disciplinary rule prohibiting inmates from possessing weapons. As charged in the misbehavior report, petitioner was one of a group of inmates who were watching television in a facility recreation room when he became annoyed at another inmate for changing the channel. Petitioner went back to his cube, retrieved a sharpened metal rod and then confronted the inmate in question, challenging him to fight. When correction officers appeared, petitioner passed the shank off to another inmate, warning that if he did not accept it, he would “pay for it later.” The shank was ultimately recovered by correction officers.

Contrary to petitioner’s contention, the detailed misbehavior report, combined with the testimony of both the reporting officer and the confidential informant, provide substantial evidence to support the determination (see, Matter of Martinez v Selsky, 274 AD2d 726; Matter of Rivera v Selsky, 272 AD2d 708, lv denied 95 NY2d 762).

Petitioner’s assertion that the Hearing Officer failed to make an independent assessment of the credibility of the informant is meritless. The record includes transcripts of the confidential interviews which the Hearing Officer conducted with both the informant and the reporting officer, during which he was able to make a satisfactory assessment of the credibility and reliability of the confidential information (see, Matter of Abdur-Raheern v Mann, 85 NY2d 113, 123; Matter of Johnson v Goord, 287 AD2d 923). Petitioner’s exculpatory testimony, in which he asserted that the shank he was accused of possessing was in actuality a long-handled cooking spoon, raised a credibility issue for resolution by the Hearing Officer (see, Matter of Pena v Goord, 290 AD2d 624; Matter of Baldwin v Goord, 262 AD2d 691, 692).

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