Opinion
519554
05-21-2015
In the Matter of Sheldon CLARK, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Sheldon Clark, Brocton, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Sheldon Clark, Brocton, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Opinion 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 a prison disciplinary rule.
A correction officer received information from a confidential source who observed petitioner in possession of a weapon and saw him secrete it in a pair of state issued pants that were hanging in the dorm bathroom. The weapon, which was described in detail by the confidential source, was later found in a different location, but the confidential source positively identified it as the weapon belonging to petitioner. Petitioner was subsequently charged in a misbehavior report with possessing a weapon. He was found guilty of the charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the investigating officer who prepared it and the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of White v. Fischer, 121 A.D.3d 1478, 1478–1479, 994 N.Y.S.2d 467 [2014] ; Matter of Best v. Larkin, 116 A.D.3d 1306, 1307, 983 N.Y.S.2d 910 [2014] ). Contrary to petitioner's claim, the credibility of the confidential information was sufficiently established by the details given by the confidential source, which included a precise description of the weapon as corroborated by a photograph of the weapon later recovered, as well as the investigating officer's testimony that the source had provided reliable information in the past (see Matter of Grate v. Annucci, 122 A.D.3d 1053, 1054, 994 N.Y.S.2d 746 [2014] ; Matter of White v. Fischer, 121 A.D.3d at 1479, 994 N.Y.S.2d 467 ). Moreover, petitioner's challenge to the adequacy of the hearing audiotape is not substantiated by the transcript and, given that it does not disclose any significant gaps or deficiencies, meaningful review is not precluded (see Matter of Possert v. Fischer, 106 A.D.3d 1350, 1350, 965 N.Y.S.2d 258 [2013] ; compare Matter of Farrell v. New York State Off. of the Attorney Gen., 108 A.D.3d 801, 801, 968 N.Y.S.2d 253 [2013] ). We have considered petitioner's remaining contentions and find them to be unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., McCARTHY, ROSE and DEVINE, JJ., concur.