Opinion
2014-06-19
In the Matter of John ROSSI, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
John Rossi, Ogdensburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
John Rossi, Ogdensburg, 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 Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation, correction officials discovered that petitioner was involved in a scheme to introduce a cell phone and drugs into the correctional facility. As a result, he was charged in a misbehavior report with conspiring to possess a controlled substance, possession of contraband and smuggling. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officials involved in the investigation and the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt ( see Matter of Carrero v. Fischer, 106 A.D.3d 1299, 1299, 964 N.Y.S.2d 917 [2013];Matter of Brown v. Fischer, 98 A.D.3d 778, 779, 949 N.Y.S.2d 803 [2012] ). Contrary to petitioner's claim, the Hearing Officer conducted an independent assessment of the credibility of the confidential informant by questioning the correction officials involved in the investigation ( see Matter of White v. Prack, 94 A.D.3d 1299, 942 N.Y.S.2d 383 [2013];Matter of Sime v. Goord, 30 A.D.3d 887, 889, 817 N.Y.S.2d 733 [2006],lv. denied7 N.Y.3d 717, 826 N.Y.S.2d 605, 860 N.E.2d 67 [2006] ). Notably, petitioner was not entitled to question the confidential informant ( see Matter of Barton v. New York State Dept. of Correctional Servs., 81 A.D.3d 1029, 1030, 917 N.Y.S.2d 345 [2011];Matter of Stallone v. Fischer, 65 A.D.3d 1410, 1410, 885 N.Y.S.2d 230 [2009],lv. denied13 N.Y.3d 712, 2009 WL 4035641 [2009] ). Therefore, we find no reason to disturb the determination of guilt.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. PETERS, P.J., ROSE, EGAN JR., LYNCH and CLARK, JJ., concur.