Garcia v. Fayette

254 A.D.2d 555, 679 N.Y.S.2d 347, 1998 N.Y. App. Div. LEXIS 10890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1998
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Based in part upon confidential information, petitioner was found guilty of violating the prison disciplinary rules that prohibit extortion and threatening violence against an inmate.

* Petitioner contends that the Hearing Officer’s refusal to permit him to review the confidential information denied him the right to call witnesses and receive documentary evidence. We disagree. The Hearing Officer determined that disclosing the confidential information would jeopardize the safety of the informant. Petitioner was nevertheless permitted to ask questions regarding the confidential testimony provided that the identity of the confidential source was not disclosed. Contrary to petitioner’s contention, he had no right to confront and cross-examine the confidential informant (see, Matter of Abdur-Raheem v Mann, 85 NY2d 113, 119; Matter of Breland v Senkowski, 168 AD2d 751, 752), notwithstanding the fact that he alleged to know the informant’s identity. To the extent that petitioner’s remaining challenges to the determination of his guilt are discemable, they have been reviewed and found to be without merit.

Cardona, P. J., Mikoll, Crew III, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although petitioner asserted in his petition that the determination was not supported by substantial evidence, requiring that the proceeding to be transferred to this Court, he has now abandoned that issue (see, Matter of Vasquez v Coombe, 225 AD2d 925).