Summary
holding that "[t]he misbehavior report, which was the result of an investigation based upon confidential information, provided the date upon which the investigation was concluded and set forth sufficient details as to apprise petitioner of the charges and enable him to prepare a defense"
Summary of this case from Wilson v. AnnucciOpinion
2012-12-13
In the Matter of Derrick HAYWARD, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Derrick Hayward, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Derrick Hayward, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., MERCURE, 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.
Upon the receipt of information from a confidential source, correction officials charged petitioner in a misbehavior report with making threats, extortion and engagingin violent conduct toward another inmate. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. On administrativeappeal, the finding of guilt was upheld and the penalty was reduced from 12 months to 9 months in the special housing unit and corresponding loss of privileges. Petitioner thereafter commenced this CPLR article 78 proceeding.
Initially, we reject petitioner's argument that the misbehavior report was defective because it failed to provide specific dates and times of the alleged misconduct. The misbehavior report, which was the result of an investigation based upon confidential information, provided the date upon which the investigation was concluded and set forth sufficient details as to apprise petitioner of the charges and enable him to prepare a defense ( see Matter of Taylor v. Fischer, 74 A.D.3d 1677, 1677, 906 N.Y.S.2d 112 [2010];Matter of Willacy v. Fischer, 67 A.D.3d 1099, 1100, 889 N.Y.S.2d 261 [2009] ). The misbehavior report, the testimony of its author and the confidential testimony and information provide substantial evidence supporting the finding of guilt ( see Matter of Perez v. Fischer, 89 A.D.3d 1310, 1310–1311, 932 N.Y.S.2d 598 [2011];Matter of Willacy v. Fischer, 67 A.D.3d at 1100, 889 N.Y.S.2d 261). To the extent that the testimony of petitioner and his inmate witnesses conflicted with the confidential information, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Perez v. Fischer, 89 A.D.3d at 1311, 932 N.Y.S.2d 598). Petitioner's contention that the Hearing Officer failed to undertake an independent assessment of the credibility of the confidential information is belied by the record, which confirms that the Hearing Officer conducted personal interviews of the informant and the investigating correction officer ( see id. at 1311, 932 N.Y.S.2d 598;Matter of Shabazz v. Artus, 72 A.D.3d 1299, 1300, 903 N.Y.S.2d 544 [2010] ). Finally, the record reflects that petitioner was advised prior to the conclusion of the hearing that confidential testimony would be considered and that confidentiality was necessary to maintain the safety and security of the informant ( see Matter of Cowan v. Fischer, 64 A.D.3d 839, 839, 884 N.Y.S.2d 272 [2009] ). Petitioner's remaining contentions, to the extent that they have been preserved, are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.