Perez v. Goord

34 A.D.3d 878, 822 N.Y.S.2d 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2006
• 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 a prison disciplinary rule.

Following a stabbing incident involving two inmates, correction officials received confidential information indicating that petitioner had retrieved the weapon used in the stabbing and hid it in a refrigerator in the kitchen. After the weapon was recovered in the specified location, petitioner was charged in a misbehavior report with possessing a weapon. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the hearing testimony and the testimony of the confidential informants considered by the Hearing Officer in camera, constitute substantial evidence supporting the determination (see Matter of Dukes v Goord, 16 AD3d 747, 747 [2005]). Contrary to petitioner’s claim, the Hearing Officer independently assessed the reliability of the confidential sources by conducting a personal interview (see Matter of McCain v Goord, 19 AD3d 910, 910 [2005]; Matter of Camacho v Goord, 18 AD3d 1046, 1047 [2005]). Petitioner’s remaining contentions, including his claim that the Hearing Officer was biased (see Matter of Cunningham v Selsky, 29 AD3d 1254, 1255 [2006]), have not been preserved for our review due to petitioner’s failure to raise them at the disciplinary hearing (see Matter of Cargill v Goord, 29 AD3d 1255, 1256 [2006]).

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