Otero v. Fischer

Sep 11, 2008
Versions:54 A.D.3d 1082
863 N.Y.S.2d 833

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.

Following a tier III disciplinary hearing, petitioner was found guilty of assaulting two other inmates. Upon administrative appeal, that determination was affirmed with a modified penalty. This CPLR article 78 proceeding by petitioner ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report, photographs depicting blood and injuries on petitioner‘s hands and testimony adduced at the hearing, including confidential testimony considered by the Hearing Officer in camera (see Matter of Ubaldo v Leclaire, 46 AD3d 975 [2007]). Regarding the confidential information, the Hearing Officer was able to independently assess its reliability through his questioning of the counselor who obtained the information from two confidential informants (see Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007]). Petitioner‘s remaining contentions, including his challenges to the adequacy of the misbehavior report, have been considered and found to be unavailing.

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