Morillo v. Goord

38 A.D.3d 947, 832 N.Y.S.2d 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2007
• 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After an investigation disclosed that petitioner cut another inmate on the side of the face, he was charged in a misbehavior report with assaulting an inmate, engaging in violent conduct and possessing a weapon. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, documentary evidence and testimony at the hearing, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Turner v Goord, 32 AD3d 1119, 1120 [2006], lv denied 8 NY3d 804 [2007]; Matter of Key v Goord, 19 AD3d 849 [2005]). Contrary to petitioner’s claim, the record discloses that the Hearing Officer independently verified the reliability of the information provided by the confidential informants by conducting a personal interview of one of the informants as well as the correction sergeant who interviewed them (see Matter of Camacho v Goord, 18 AD3d 1046, 1047 [2005]; Matter of Berry v Portuondo, 6 AD3d 848, 849 [2004]). The conflicting testimony of petitioner and certain inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Moreover, there is no merit to petitioner’s challenge to the misbehavior report as the information contained therein was sufficiently particular to enable petitioner to prepare a defense (see Matter of Kalwasinski v Goord, 25 AD3d 1050, 1051 [2006]). Petitioner’s remaining contentions are either not preserved for our review or are lacking in merit.

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