Opinion
1383 TP 17–01062
12-22-2017
In the Matter of Antoine PORTER, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated several inmate rules, including assault on an inmate in violation of inmate rule 100.10 ( 7 NYCRR 270.2 [B][1][i] ). Contrary to petitioner's contention, the determination is supported by substantial evidence.
It is well settled that misbehavior reports may constitute substantial evidence to support a determination (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). Where, as here, "the misbehavior report was not written by a correction officer who witnessed the conduct in question, the record must contain facts establishing some indicia of reliability to the hearsay before the report may be considered sufficiently relevant and probative to constitute substantial evidence" ( Matter of McIntosh v. Coughlin, 155 A.D.2d 762, 763, 547 N.Y.S.2d 470 [3d Dept. 1989] ). Furthermore, where, as here, the misbehavior report is based on information provided by an inmate informant, "any reasonable method for establishing the informant's reliability will suffice" to establish the informant's credibility ( Matter of Abdur–Raheem v. Mann, 85 N.Y.2d 113, 121, 623 N.Y.S.2d 758, 647 N.E.2d 1266 [1995] ). Consequently, a hearing officer may properly determine that an informant's credibility is established "where the information provided by the informant [to the author of the report] is ‘sufficiently detailed’ to enable a hearing officer to assess the informant's reliability ..., or the information provided to the hearing officer establishes that the informant provided the information based on personal knowledge" ( Matter of Brown v. Fischer, 91 A.D.3d 1336, 1337, 936 N.Y.S.2d 831 [4th Dept. 2012] ).
Here, the Hearing Officer had a sufficient basis upon which to assess the credibility of the informant inasmuch as the information provided to her "established that the confidential account was detailed and specific; that there were valid reasons to conclude that the informant was reliable; and that there was no reason to think that the informant was motivated by a promise of reward from the prison officials or a personal vendetta against petitioner" ( Matter of Williams v. Fischer, 18 N.Y.3d 888, 890, 940 N.Y.S.2d 531, 963 N.E.2d 1232 [2012] ). Consequently, we conclude that the misbehavior report, the testimony of a correction officer, and information received from a confidential informant constitute substantial evidence to support the determination that petitioner violated the applicable inmate rules (see M atter of Green v. Sticht, 124 A.D.3d 1338, 1339, 1 N.Y.S.3d 670 [4th Dept. 2015],lv denied 26 N.Y.3d 906, 18 N.Y.S.3d 597, 40 N.E.3d 575 [2015] ). Petitioner's contention that he did not assault the victim or order another inmate to attack the victim merely created a credibility issue for the Hearing Officer to resolve (see Matter of Watson v. Fischer, 108 A.D.3d 1006, 1007, 969 N.Y.S.2d 263 [3d Dept. 2013] ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.