Rios v. Fischer

Feb 11, 2009
Versions:59 A.D.3d 797
873 N.Y.S.2d 752

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 two major disturbances involving gang members, petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting unauthorized organization and demonstration. He was ultimately found guilty of only unauthorized organization. Petitioner then commenced this CPLR article 78 proceeding seeking annulment. We now confirm.

It is initially noted that petitioner has abandoned his claim that the determination of guilt is not supported by substantial evidence inasmuch as he has not advanced such an argument in his brief (see Matter of Coleman v Goord, 39 AD3d 1048, 1048 n [2007]). Turning to petitioner‘s procedural contentions, the Hearing Officer properly assessed the credibility and reliability of the confidential information by extensively interviewing the correction officer who investigated the matter and obtained the confidential information from the informants (see Matter of Berry v Portuondo, 6 AD3d 848, 849 [2004]). Regarding petitioner‘s claim that the misbehavior report was deficient, we disagree and find that it provided him with adequate notice of the nature of his alleged misconduct and the charges against him and enabled him to prepare a defense (see Matter of Nova v Selsky, 54 AD3d 453, 454 [2008]). Petitioner‘s remaining assertions have been examined and found to be unpersuasive.

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