Opinion
524127.
11-02-2017
In the Matter of Marte Tejada JOHANSEL, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Marte Tejada Johansel, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Marte Tejada Johansel, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino 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 a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.During the course of an investigation, correction officials received confidential information identifying petitioner as the leader of an unauthorized gang who ordered an assault on at least two other inmates and who had been distributing razor-type weapons throughout the facility. As a result, petitioner was charged in a misbehavior report with conspiring to assault an inmate, engaging in gang activity, possessing a weapon and engaging in violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. That determination was upheld upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the testimony of its author and the confidential testimony and information provide substantial evidence supporting the finding of guilt (see Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Baez v. Bellnier, 131 A.D.3d 771, 771, 14 N.Y.S.3d 718 [2015] ; Matter of Pompey v. Prack, 128 A.D.3d 1251, 1252, 8 N.Y.S.3d 499 [2015] ). Moreover, the Hearing Officer's confidential interview with the correction officer who authored the misbehavior report and conducted the investigation was sufficiently detailed to independently assess the reliability of the confidential information (see Matter of Williams v. Fischer, 18 N.Y.3d 888, 890, 940 N.Y.S.2d 531, 963 N.E.2d 1232 [2012] ; Matter of DeJesus v. Venettozzi, 145 A.D.3d 1275, 1276, 43 N.Y.S.3d 593 [2016], lv. denied 29 N.Y.3d 908, 2017 WL 2367345 [2017] ).
While petitioner also avers that he was improperly denied the right to call certain witnesses at the hearing, the record demonstrates that petitioner specifically and intelligently told the Hearing Officer during the hearing that he did not wish to call any further witnesses (see Matter of Sparks v. Annucci, 144 A.D.3d 1352, 1353, 43 N.Y.S.3d 145 [2016] ; Matter of Brown v. Barkley, 67 A.D.3d 1147, 1148, 887 N.Y.S.2d 871 [2009], lv. denied 14 N.Y.3d 702, 2010 WL 520588 [2010] ). Petitioner's remaining contentions have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., EGAN JR., DEVINE, AARONS and RUMSEY, JJ., concur.