Opinion
2011-09-22
In the Matter of Tony HARRISON, Petitioner,v.Albert PRACK, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Tony Harrison, Auburn, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Tony Harrison, Auburn, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
After a confidential informant approached a correction officer and reported that he had overheard petitioner making threats towards facility personnel, petitioner was charged in a misbehavior report with violent conduct and making threats. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was upheld on administrative appeal, with a downward modification to the penalty assessed. Thereafter, petitioner commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, hearing testimony and confidential testimony of both correction officers and inmate witnesses provide substantial evidence to support the determination of guilt ( see Matter of Vidal–Ortiz v. Fischer, 84 A.D.3d 1627, 1628, 923 N.Y.S.2d 312 [2011]; Matter of Phipps v. Fischer, 82 A.D.3d 1396, 1397, 918 N.Y.S.2d 385 [2011] ). The fact that the Hearing Officer personally took testimony from the confidential witnesses provided a sufficient basis to assess their credibility ( see Matter of Barton v. New York State Dept. of Correctional Servs., 81 A.D.3d 1029, 1030, 917 N.Y.S.2d 345 [2011];
Matter of Houston v. Fischer, 69 A.D.3d 1086, 1087, 893 N.Y.S.2d 343 [2010] ).
Turning to petitioner's procedural contentions, we find that the misbehavior report contained sufficient detail to put him on notice of the charges against him and allow him to prepare a defense ( see Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011]; Matter of Knight v. Bezio, 82 A.D.3d 1381, 1382, 919 N.Y.S.2d 220 [2011], lv. dismissed 17 N.Y.3d 788, 929 N.Y.S.2d 87, 952 N.E.2d 1082 [2011] ). Similarly, the report was written “as soon as practicable” given that the author was absent from the facility when the information was first received and, thereafter, took several days to investigate the matter (7 NYCRR 251–3.1[a]; see Matter of Valentino v. Bezio, 72 A.D.3d 1376, 1377, 901 N.Y.S.2d 726 [2010]; Matter of Decastro v. Prack, 62 A.D.3d 1224, 1225, 881 N.Y.S.2d 513 [2009] ). The Hearing Officer did not err in taking confidential testimony outside petitioner's presence for reasons of institutional safety and security ( see Matter of Shabazz v. Artus, 72 A.D.3d 1299, 1300, 903 N.Y.S.2d 544 [2010]; Matter of Cowan v. Fischer, 64 A.D.3d 839, 839, 884 N.Y.S.2d 272 [2009] ). Finally, we find the Hearing Officer properly considered petitioner's mental health status based upon two confidential interviews he conducted with representatives of the mental health unit ( see Matter of Pante v. Goord, 73 A.D.3d 1394, 1395, 902 N.Y.S.2d 684 [2010] ).
We have examined petitioner's remaining contentions and find them to be unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.