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Matter of Handley v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Apr 5, 2001
282 A.D.2d 798 (N.Y. App. Div. 2001)

Opinion

April 5, 2001.

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.

David Handley, Beacon, petitioner in person.

Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

Before: Mercure, J.P., Peters, Carpinello, Rose and Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules prohibiting inmates from soliciting, conspiring to introduce drugs into the facility, smuggling, harassment and abusing the phone program. Contrary to petitioner's contention, the misbehavior report, together with the testimony adduced at the hearing, including the confidential testimony of the correction officer who authored the report as well as confidential documents, constitute substantial evidence of petitioner's guilt (see, Matter of Kayshawn v. Selsky, 277 A.D.2d 611, 715 N.Y.S.2d 540).

Petitioner next asserts that the Hearing Officer erred in relying upon confidential testimony without first assessing the reliability of such testimony. We note that petitioner failed to object to this alleged failure during the hearing and, accordingly, his claim is unpreserved for our review (see, Matter of Campanale v. Coughlin, 214 A.D.2d 902). In any event, our review of the record and the in camera material indicates that the confidential information was sufficiently detailed to permit the Hearing Officer's independent assessment of reliability and credibility (see, Matter of Sanabria v. Senkowski, 274 A.D.2d 799). Likewise, petitioner's request for the testimony of a witness referred to in the misbehavior report as "Alvin" was properly denied on the ground that revelation of his identity would jeopardize facility security (see, 7 NYCRR 254.5; Matter of Ross v. Goord, 276 A.D.2d 952). Finally, petitioner's contention that the Hearing Officer should have recused himself, inasmuch as he had signed a search slip for petitioner's cell, is unpreserved for our review (see, Matter of Vaughn v. Selsky, 276 A.D.2d 958, lv dismissed 96 N.Y.2d 754 [Feb. 8, 2001]) and, in any event, is without merit (see, Matter of Vidal v. Goord, 273 A.D.2d 535,lv denied 95 N.Y.2d 763).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


Summaries of

Matter of Handley v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Apr 5, 2001
282 A.D.2d 798 (N.Y. App. Div. 2001)
Case details for

Matter of Handley v. Selsky

Case Details

Full title:In the Matter of DAVID HANDLEY, Petitioner, v. DONALD SELSKY, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 5, 2001

Citations

282 A.D.2d 798 (N.Y. App. Div. 2001)
722 N.Y.S.2d 434

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