Opinion
518744.
04-23-2015
In the Matter of Richard ROSARIO, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Morrison & Foerster, LLP, New York City (Carl H. Loewenson of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Morrison & Foerster, LLP, New York City (Carl H. Loewenson of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., ROSE and LYNCH, JJ., concur.
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.
Following an investigation in which confidential information was received, petitioner was charged in a misbehavior report with organizing a demonstration. Petitioner was found guilty as charged after a disciplinary hearing and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony at the hearing and the confidential information considered by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Smith v. Fischer, 64 A.D.3d 1061, 1061–1062, 882 N.Y.S.2d 770 [2009], lv. denied 13 N.Y.3d 712, 2009 WL 4016802 [2009] ). Our review of the record satisfies us that the Hearing Officer was able to independently assess the reliability of the confidential information through his detailed interview of the correction officer who received it (see Matter of Staton v. Goord, 41 A.D.3d 1105, 1106, 839 N.Y.S.2d 820 [2007] ; Matter of Biggs v. Goord, 308 A.D.2d 619, 620, 764 N.Y.S.2d 222 [2003] ).
Petitioner's contention that the charges against him were vague, particularly given the fact that he was not informed of an additional date and time of the alleged misconduct until after the hearing commenced, is without merit. The misbehavior report relates that petitioner encouraged others to participate in a three-day demonstration. When petitioner was informed during the hearing that the alleged misconduct of meeting with other participants had actually occurred on the evening of the day before the date previously alleged, the Hearing Officer obtained related documentation for petitioner regarding the corrected date. Although the Hearing Officer provided petitioner with an opportunity to adjourn the hearing for additional time to prepare a defense, petitioner declined. Under these circumstances, petitioner has not demonstrated any prejudice by any alleged vagueness in the misbehavior report nor was he precluded from preparing a defense (see Matter of Werner v. Philips, 20 A.D.3d 711, 712, 798 N.Y.S.2d 241 [2005] ; Matter of Gibson v. Ricks, 288 A.D.2d 569, 570, 732 N.Y.S.2d 452 [2001] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.