State of New York Supreme Court, Appellate Division Third Judicial Department
April 22, 2010
IN THE MATTER OF JERRY SANDERS, PETITIONER,
WILLIAM T. HAGGETT, AS SUPERINTENDENT OF MT. MCGREGOR CORRECTIONAL FACILITY, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: March 1, 2010
Before: Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Saratoga County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Based upon confidential information that he had thrown a bar of soap at a correction officer, petitioner was charged in a misbehavior report with attempted assault and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty as charged and a penalty was imposed. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the confidential testimony and information considered by the Hearing Officer in camera, provide substantial evidence to support the determination of guilt (see Matter of Arnold v Fischer, 60 AD3d 1177, 1177 ; Matter of Gallo v Fischer, 50 AD3d 1374, 1374 ). Moreover, contrary to petitioner's contention, he was not entitled to access the confidential information (see Matter of Umoja v Bezio, 64 AD3d 1066, 1066 ; Matter of Rickson v Leclaire, 46 AD3d 1050, 1051 ). Further, although the Hearing Officer did not interview the confidential informant, he made adequate inquiries of the correction officer who received the information to properly ascertain the informant's reliability (see Matter of Farrow v Prack, 57 AD3d 1065, 1065 , lv denied 12 NY3d 704 ). Finally, we are not convinced that the gap in the hearing transcript precludes meaningful judicial review (see Matter of Cowart v Bezio, 67 AD3d 1152, 1152 ), particularly considering that the inmate witness's testimony to that point indicated that he had not personally observed the incident in question. Petitioner's remaining claims have been examined and found to be without merit.
Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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