Opinion
527902
08-01-2019
In the Matter of Anthony SMALL, Petitioner, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Anthony J. Annucci, Commissioner, Respondent.
Anthony Small, Napanoch, petitioner pro se. Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Anthony Small, Napanoch, petitioner pro se.
Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND JUDGMENT Based upon an investigation that included the use of a confidential informant, petitioner was charged in a misbehavior report with assaulting an inmate by punching him in the mouth and causing a minimally displaced fracture to his jaw. Following a tier III hearing, petitioner was found guilty of that charge and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We are unpersuaded by petitioner's contention that he was improperly denied the right to call the victim of the assault without further inquiry from the Hearing Officer. The record does not reflect that the victim ever agreed to testify. Further, after petitioner requested the victim as a witness, the record reveals that a correction officer inquired of the victim whether he would testify, but the victim refused, signing a witness refusal form. As such, the Hearing Officer was not required to make any further inquiry (see Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1385, 80 N.Y.S.3d 746 [2018] ; Matter of Ballard v. Annucci, 156 A.D.3d 1013, 1015, 66 N.Y.S.3d 84 [2017] ; Matter of Harrison v. Venettozzi, 150 A.D.3d 1508, 1509, 55 N.Y.S.3d 498 [2017], lv denied 30 N.Y.3d 901, 2017 WL 4542713 [2017] ).
To the extent that petitioner challenges the confidential information, the record establishes that the information received was sufficiently detailed and corroborated for the Hearing Officer to independently assess its reliability (see Matter of Latson v. Annucci, 171 A.D.3d 1319, 1320, 95 N.Y.S.3d 910 [2019] ; Matter of Sumter v. Annucci, 168 A.D.3d 1306, 1307, 92 N.Y.S.3d 453 [2019] ). The confidential information, together with the misbehavior report, related documentation and the hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Sumter v. Annucci, 168 A.D.3d at 1307, 92 N.Y.S.3d 453 ; Matter of Ellison v. Annucci, 142 A.D.3d 1233, 1234, 38 N.Y.S.3d 631 [2016] ).
Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.