From Casetext: Smarter Legal Research

Miller v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York, Third Department
Jun 13, 2002
295 A.D.2d 714 (N.Y. App. Div. 2002)

Opinion

89592

June 13, 2002.

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Castillo Associates, Albany (Adam G. Parisi of counsel), for petitioner.

Eliot Spitzer, Attorney General, Albany (Edward Lindner of counsel), for respondents.

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


MEMORANDUM AND JUDGMENT

Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on an inmate, possession of a weapon and participation in unauthorized organizational activities. The misbehavior report relates that petitioner, a member of an inmate gang known as the "Crips", attacked an inmate whom he believed to be a member of a rival gang known as the "Bloods", cutting him above his left eye with a razor-type weapon. Evidence presented at the disciplinary hearing included the misbehavior report, testimony given by the correction officer who investigated the incident, the investigating officer's written memorandum and the taped testimony of a confidential informant. The informant related that he had been walking next to the victim when another inmate slashed his face. He was able to identify petitioner as the perpetrator of the attack from a photo array. We conclude that substantial evidence supports the determination of petitioner's guilt.

Petitioner's contention that the Hearing Officer failed to make an independent assessment of the informant's credibility is incorrect. Our in camera review discloses that the Hearing Officer conducted a personal interview with the informant during which he assessed his reliability and credibility prior to admitting his confidential testimony in evidence (see, Matter of Johnson v. Goord, 287 A.D.2d 923; Matter of Kemp v. Goord, 285 A.D.2d 943, 944; Matter of Roman v. Goord, 284 A.D.2d 604).

The exculpatory testimony given by petitioner and his inmate witnesses presented an issue of credibility for resolution by the Hearing Officer who was free to credit the testimony of some of the hearing witnesses over that given by others (see, Matter of Melendez v. Goord, 285 A.D.2d 782, 783). Petitioner's remaining contentions have been reviewed and found to be without merit.

Mercure, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur.

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


Summaries of

Miller v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York, Third Department
Jun 13, 2002
295 A.D.2d 714 (N.Y. App. Div. 2002)
Case details for

Miller v. New York State Department of Correctional Services

Case Details

Full title:In the Matter of JELAN MILLER, Petitioner, v. NEW YORK STATE DEPARTMENT OF…

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

Date published: Jun 13, 2002

Citations

295 A.D.2d 714 (N.Y. App. Div. 2002)
743 N.Y.S.2d 632

Citing Cases

Thompson v. Goord

In addition, the officer's testimony that the incident stemmed from the inmate's "problems with Bloods," a…

Nina v. Selsky

The misbehavior report, together with the documentary evidence and the testimony of the two correction…