Opinion
09-15-2016
In the Matter of Gary BOWEN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Gary Bowen, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Gary Bowen, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
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 finding petitioner guilty of violating certain prison disciplinary rules.
Following an investigation finding that petitioner and several other inmates—all members of the Bloods gang—conspired to promote violent conduct against certain staff members, petitioner was charged in a misbehavior report with gang activity, making threats, assault on staff, violent conduct and action detrimental to the facility. He was found guilty of all charges after a tier III disciplinary hearing. On administrative appeal, the assault and threats charges were dismissed, and the penalty as to the remaining three charges was reduced. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, the testimony of the correction officer who participated in the investigation and prepared the report and the confidential information considered by the Hearing Officer provided substantial evidence to support petitioner's guilt (see Matter of Baez v. Bellnier, 131 A.D.3d 771, 771, 14 N.Y.S.3d 718 [2015] ; Matter of Smith v. Fischer, 64 A.D.3d 1061, 1061–1062, 882 N.Y.S.2d 770 [2009], lv. denied 13 N.Y.3d 712, 2009 WL 4016802 [2009] ). The confidential information was detailed, included multiple independent sources and revealed valid reasons for finding the information reliable (see Matter of Williams v. Fischer, 18 N.Y.3d 888, 890, 940 N.Y.S.2d 531, 963 N.E.2d 1232 [2012] ; Matter of Grate v. Annucci, 122 A.D.3d 1053, 1054, 994 N.Y.S.2d 746 [2014] ). The Hearing Officer made proper inquiry of the correction officer who participated in the investigation of the incident to verify the reliability and credibility of the confidential informants (see Matter of Norris v. Fischer, 71 A.D.3d 1211, 1212, 897 N.Y.S.2d 534 [2010] ; Matter of Farrow v. Prack, 57 A.D.3d 1065, 1065, 868 N.Y.S.2d 392 [2008], lv. denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009] ) and, under such circumstances, it was not necessary for the Hearing Officer to personally interview the confidential informants (see Matter of Spencer v. Annucci, 122 A.D.3d 1043, 1044, 994 N.Y.S.2d 873 [2014] ; Matter of Williams v. Fischer, 78 A.D.3d 1353, 1354, 910 N.Y.S.2d 390 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 652618 [2011] ). Although petitioner's witnesses denied gang membership or the existence of the alleged conspiracy, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Zimmerman v. Annucci, 139 A.D.3d 1205, 1206, 29 N.Y.S.3d 827 [2016] ; Matter of Norris v. Fischer, 71 A.D.3d at 1212–1213, 897 N.Y.S.2d 534 ).
Contrary to petitioner's contention, the administrative reversal of two of the charges does not provide a ground for reversing the remaining three charges as repugnant. The reasons for the reversal are not set forth in the record, and the dispositive inquiry is whether the remaining three charges are supported by substantial evidence (see e.g. People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ), which they are. Petitioner's further arguments have been considered and are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., EGAN JR., DEVINE, MULVEY and AARONS, JJ., concur.