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Shea v. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


December 10, 2009

IN THE MATTER OF CRAIG SHEA, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Mercure, Kane, Malone Jr. and Kavanagh, JJ.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Based upon information provided by a confidential informant that petitioner had started a fire in another inmate's cube, petitioner was charged in a misbehavior report with creating a fire, causing a disturbance and being out of place. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We affirm. To the extent that petitioner challenges the evidentiary basis of the determination, we conclude that the misbehavior report, together with the confidential testimony and information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Smith v Fischer, 64 AD3d 1061, 1061-1062 [2009]; Matter of Arnold v Fischer, 60 AD3d 1177, 1177 [2009]). Contrary to petitioner's contention, the record reflects that, although the Hearing Officer did not independently interview the confidential informant, he made adequate inquiries of the correction officer who received the confidential information and prepared the misbehavior report to ascertain the reliability and credibility of the confidential information (see Matter of Farrow v Prack, 57 AD3d 1065, 1065 [2008], lv denied 12 NY3d 704 [2009]; Matter of Catlin v Gouverneur Correctional Facility, 38 AD3d 1025, 1026 [2007]).

Cardona, P.J., Mercure, Kane, Malone Jr. and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20091210

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