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Houston v. Fischer

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


January 14, 2010

IN THE MATTER OF STEFAN HOUSTON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

After it was discovered that petitioner had received over $800 in the mail from 17 individuals in various states, an investigation was conducted and it was determined, despite petitioner's denials, that the payments were for marihuana sold by him to fellow inmates. As a result of the investigation, which included confidential information, petitioner was charged in a misbehavior report with interfering with an employee, giving false and misleading statements and selling marihuana. He was found guilty of these charges following a tier III hearing, and that determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, the documentary evidence and the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence to support the determination of guilt (see Matter of Smith v Fischer, 64 AD3d 1061, 1061-1062 [2009], lv denied 13 NY3d 712 [2009]). Although petitioner denied selling marihuana and claimed at the hearing, as he did during the investigation, that the money he received was sent from friends of his brother, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Frazier v Prack, 62 AD3d 1185, 1186 [2009]). Contrary to petitioner's contention, the fact that he was not found in possession of marihuana does not require annulment of the determination, as sufficient circumstantial evidence supporting the charges was presented at the hearing (see Matter of Santana v Selsky, 23 AD3d 722, 723 [2005]). Finally, the reliability of the confidential informant was properly established through the personal interview conducted by the Hearing Officer (see Matter of Adorno v Goord, 35 AD3d 930, 931 [2006]).

Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur.

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

20100114

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