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Mitchell v. Bezio

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


January 28, 2010

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

MEMORANDUM AND JUDGMENT

Calendar Date: December 17, 2009

Before: Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, 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 confidential informants that petitioner was involved in an altercation with another inmate over the use of the housing unit television, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct, creating a disturbance and failing to promptly report an injury. Following a tier III disciplinary hearing, petitioner was found not guilty of failing to promptly report an injury and guilty of the remaining charges. This determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the hearing testimony and the confidential testimony heard by the Hearing Officer in camera, provide substantial evidence to support the determination of guilt (see Matter of McFarlane v Fischer, 65 AD3d 769, 770 [2009]). Contrary to petitioner's contention, the record demonstrates that, although the Hearing Officer did not independently interview the confidential informants, he made adequate inquiries of the correction officers who received the information to ascertain its reliability (see Matter of Farrow v Prack, 57 AD3d 1065, 1065 [2008], lv denied 12 NY3d 704 [2009]). Although petitioner denied being involved in an altercation, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Frazier v Prack, 62 AD3d 1185, 1186 [2009]). We also reject petitioner's contention that he was denied effective employee assistance, premised on the assistant's failure to obtain certain documents, as the documents requested either did not exist, were confidential or were irrelevant (see Matter of Cliff v Selsky, 293 AD2d 885, 885 [2002]). Finally, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Stallone v Fischer, 65 AD3d 1410, 1410-1411 [2009], lv denied 13 NY3d 712 [2009]).

Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur.

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

20100128

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