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Butler v. Fischer

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


June 24, 2010

IN THE MATTER OF MICHAEL BUTLER, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

As the result of an investigation, confidential information was received indicating that petitioner had made some homemade alcohol and requested another inmate to hide it in his locker. After a correction officer recovered the alcohol from the locker and destroyed it, petitioner was charged with violating a prison disciplinary rule prohibiting inmates from making alcoholic beverages. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation, together with the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]; Matter of Sowell v Selsky, 43 AD3d 1226 [2007], lv denied 10 NY3d 703 [2008]). Contrary to petitioner's claim, the Hearing Officer independently assessed the reliability and credibility of the confidential informant through a detailed exchange with the sergeant who interviewed this individual (see Matter of Benston v Fischer, 67 AD3d 1139, 1140 [2009]; Matter of Turner v Goord, 32 AD3d 1119, 1120 [2006], lv denied 8 NY3d 804 [2007]). Petitioner's remaining contentions, including his challenge to the sufficiency of the misbehavior report, have not been preserved for our review.

Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ., concur.

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

20100624

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