Opinion
2012-02-9
In the Matter of Jason BRISMAN, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Jason Brisman, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Jason Brisman, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, J.P., ROSE, SPAIN, STEIN and McCARTHY, JJ.
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 certain prison disciplinary rules.
Following a disturbance on the gallery where a number of inmates were present, a correction officer observed one inmate covered in blood with slash-type wounds to his head and face. During the ensuing investigation, a confidential informant disclosed that the inmate had been involved in a fight with petitioner and it appeared that petitioner had cut him with a weapon. When petitioner was located, he had an injury to his thumb as well as blood on his clothes, and bloody rags and tissues were found in his cell. In addition, there was a trail of blood leading from the gallery to petitioner's cell. As a result of the foregoing, petitioner was charged in a misbehavior report with assaulting an inmate, fighting, engaging in violent conduct, creating a disturbance and possessing a weapon. He was found guilty of the charges following a tier III disciplinary hearing and this determination was later affirmed on administrative appeal. This CPLR article 78 proceeding followed.
We confirm. Initially, we find no merit to petitioner's claim that the misbehavior report failed to comply with the particularity requirements of 7 NYCRR 251–3.1(c)(1). The report set forth the rule violations and specific details of the incident, including the information related by the confidential informant, such as to adequately apprise petitioner of the charges against him and enable him to prepare a defense ( see Matter of Mance v. Prack, 89 A.D.3d 1363, 933 N.Y.S.2d 621; Matter of Smith v. Fischer, 79 A.D.3d 1491, 1491, 915 N.Y.S.2d 184 [2010]). lv. denied 18 N.Y.3d 802, 933 N.Y.S.2d 621, ––– N.E.2d –––– [2011]. Moreover, the detailed misbehavior report and related documentation, together with the testimony adduced at the hearing and the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt ( see Matter of Gonzalez v. Prack, 62 A.D.3d 1220, 1220, 878 N.Y.S.2d 923 [2009], lv. denied 13 N.Y.3d 711, 893 N.Y.S.2d 511, 921 N.E.2d 203 [2009]; Matter of Key v. Goord, 19 A.D.3d 849, 849, 797 N.Y.S.2d 168 [2005] ). Contrary to petitioner's claim, the Hearing Officer conducted a sufficient inquiry to ascertain the credibility and reliability of the confidential informant through a personal interview with this individual ( see Matter of Estevez v. Fischer, 63 A.D.3d 1402, 1403, 881 N.Y.S.2d 226 [2009]; Matter of Nova v. Selsky, 54 A.D.3d 453, 454, 863 N.Y.S.2d 296 [2008] ). Petitioner's testimony that he was not involved in the altercation but slipped on blood already in the corridor causing him to fall and injure his hand presented a credibility issue for the Hearing Officer to resolve ( see Matter of Jenkins v. Fischer, 78 A.D.3d 1385, 1386, 910 N.Y.S.2d 922 [2010]; Matter of Hernandez v. Bezio, 73 A.D.3d 1406, 1407, 902 N.Y.S.2d 688 [2010] ). His remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.