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Sterling v. Bezio

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


September 30, 2010

IN THE MATTER OF JULIAN STERLING, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Peters, J.P., Rose, Kavanagh, McCarthy and Egan Jr., 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.

After an inmate was slashed with a razor in the prison yard, a confidential informant identified petitioner as a participant in the gang-related incident. Petitioner was thereafter served with a misbehavior report charging him with multiple disciplinary infractions. After petitioner was escorted to the special housing unit, a search of his cell revealed a razor with the blade missing and he was served a second misbehavior report charging him with possession of an altered item. Following a tier III disciplinary hearing, petitioner was found guilty of violent conduct, assault on an inmate, possession of a weapon, threats, gang activity and possession of an altered item. That determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The detailed misbehavior reports, the hearing and confidential testimony of the correction officers who investigated the incident and searched petitioner's cell and the confidential memorandum provide substantial evidence to support the determination of petitioner's guilt (see Matter of Norris v Fischer, 71 AD3d 1211, 1212 [2010]; Matter of Nova v Selsky, 54 AD3d 453, 454 [2008]). Contrary to petitioner's contention, the Hearing Officer was able to independently assess the reliability of the confidential information through his questioning of the correction officer who obtained the information from two confidential informants (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Otero v Fischer, 54 AD3d 1082 [2008]).

Petitioner's remaining contentions have been examined and are either unpreserved or lacking in merit.

Peters, J.P., Rose, Kavanagh, McCarthy and Egan Jr., JJ., concur.

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

20100930

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