Wan v. Goord

32 A.D.3d 1122, 821 N.Y.S.2d 489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 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 fight in the laundry room, correction officers received confidential information in the form of anonymous notes which indicated that petitioner, a laundry porter, possessed a weapon and was making homemade alcohol. They searched the laundry room and found a metal shank wrapped in brown duct tape secreted in a jump suit as well as four gallons of a substance determined to be alcohol. They also searched petitioner’s cell where they found a roll of duct tape of the same type wrapped around the metal shank. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing alcohol. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of possessing a weapon, but not guilty of possessing alcohol. The determination of guilt was upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

Upon our review, “[t]he misbehavior report, testimony at the hearing and supporting documents, together with the circumstantial evidence and reasonable inferences to be drawn therefrom, provide substantial evidence to support the determination of guilt” (Matter of Gourdine v Goord, 18 AD3d 1045, 1045-1046 [2005]). While petitioner contends that the Hearing Officer did not ascertain the reliability of the confidential sources, we note that the information they disclosed prompted the investigation and search but did not provide the basis for the determination of guilt (see Matter of Hemphill v Selsky, 26 AD3d 548, 549 [2006]). Petitioner’s remaining contentions have not been preserved for our review.

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