Witkowski v. Goord

Nov 15, 2007
Versions:45 A.D.3d 1068
845 N.Y.S.2d 863

*1069Proceeding 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 certain prison disciplinary rules.

Following an investigation into an inmate’s bed being set on fire, petitioner was charged in a misbehavior report with creating a fire, destroying state property and making threats. That same day, while the property in petitioner’s cell was being packed, 24 excess blankets and pillows were discovered. Consequently, petitioner was charged in a second misbehavior report with possessing state bedding in excess of the amount authorized. After the initial determination on the charges was reversed, a tier III rehearing was conducted. At the conclusion of the rehearing, petitioner was found guilty of all charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior reports, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1113-1114 [2006] , appeal dismissed 8 NY3d 943 [2007]). Contrary to petitioner’s claim, the Hearing Officer adequately assessed the reliability and credibility of the confidential informants through his detailed questioning of the correction officer who spoke to them (see Matter of Staton v Goord, 41 AD3d 1105, 1106 [2007]; Matter of Plowden v Bunn, 38 AD3d 1107, 1108 [2007]). Moreover, our review of the record discloses that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Evans v Goord, 41 AD3d 1127, 1128 [2007] ). Petitioner’s remaining contentions are either unpreserved for our review or lacking in merit.

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