Ferrer v. Prack

107 A.D.3d 1254, 966 N.Y.S.2d 923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2013
• Status: Published

Opinion

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 certain prison disciplinary rules.

After confidential information prompted a frisk of petitioner, which revealed a glove tip containing an unidentified white powdery substance in petitioner’s pants pocket, he was charged in a misbehavior report with smuggling and possession of contraband. Following a disciplinary hearing, petitioner was found guilty of both charges and the determination thereafter was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Contrary to petitioner’s contention, the misbehavior report, testimony at the hearing and confidential information provide substantial evidence to support the determination of guilt (see Matter of Jamison v State of N.Y. Dept. of Corr. Servs., 98 AD3d 1150, 1150 [2012]; Matter of Johnson v Goord, 46 AD3d 1038, 1038 [2007]). Petitioner’s denial that he possessed the contraband presented a credibility issue for the Hearing Officer to resolve (see Matter of McFarlane v Fischer, 65 AD3d 769, 771 [2009]). We have reviewed petitioner’s remaining contentions, including that he was denied documentary evidence and that the Hearing Officer was required to assess the reliability of the confidential information which led to the pat frisk, and find them to be without merit.

Peters, P.J., Lahtinen, Spain and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.