Opinion
2011-09-29
In the Matter of Angelo PISANO, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
Angelo Pisano, Port Washington, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Angelo Pisano, Port Washington, 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 (1) a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules and (2) a determination of the Time Allowance Committee withholding six months of petitioner's good time credit.
Following an investigation, during which information was received from confidential sources indicating that petitioner was selling marihuana in the correctional facility where he was incarcerated, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange and selling drugs. The resulting tier III disciplinary hearing was reversed on procedural grounds and a rehearing was ordered. Following a rehearing on the charges contained in the original misbehavior report, petitioner was found guilty and the determination was affirmed on administrative appeal. The penalty included a recommended loss of six months of good time, which the Time Allowance Committee withheld in computing petitioner's conditional release date. Petitioner commenced this CPLR article 78 proceeding challenging the disciplinary determination, as well as the determination of the Time Allowance Committee.
We confirm. The misbehavior report, together with the testimony of the sergeant 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 Washington v. Fischer, 74 A.D.3d 1659, 1659, 903 N.Y.S.2d 799 [2010]; Matter of Rympalski v. Goord, 19 A.D.3d 960, 960, 797 N.Y.S.2d 644 [2005] ). Contrary to petitioner's claim, the Hearing Officer properly conducted an independent assessment of the reliability of the confidential information received by questioning the correction sergeant involved in the investigation, as well as a confidential source ( see Matter of Alba v. Goord, 6 A.D.3d 847, 847, 774 N.Y.S.2d 443 [2004]; Matter of Fernandez v. Goord, 304 A.D.2d 1005, 1005–1006, 756 N.Y.S.2d 919 [2003] ). Moreover, inasmuch as the misbehavior
report was written as the result of an ongoing investigation into the sale of marihuana at the facility and set forth the nature of the transactions as well as the particular rules violated, we find that the report as a whole provided petitioner with adequate notice of the charges to enable him to prepare a defense ( see Matter of Catlin v. Gouverneur Correctional Facility, 38 A.D.3d 1025, 1026, 832 N.Y.S.2d 309 [2007]; Matter of Jackson v. Smith, 13 A.D.3d 685, 685, 785 N.Y.S.2d 603 [2004], lv. denied 4 N.Y.3d 707, 795 N.Y.S.2d 517, 828 N.E.2d 620 [2005] ). Likewise, while petitioner complains that he was not given adequate employee assistance, the record establishes that he received assistance after the misbehavior report initially was written, and any additional documents and/or witnesses he requested prior to the rehearing were provided by the Hearing Officer, thereby remedying any deficiencies and alleviating any prejudice ( see Matter of Lovett v. Goord, 26 A.D.3d 563, 564, 807 N.Y.S.2d 728 [2006]; Matter of Otero v. Selsky, 9 A.D.3d 631, 632, 779 N.Y.S.2d 648 [2004] ). Lastly, upon reviewing the record, we find no impropriety in the actions of the Time Allowance Committee in withholding petitioner's good time credit when computing his conditional release date. Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.