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Washington v. Fischer

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


November 18, 2010

IN THE MATTER OF VISCOUNT WASHINGTON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 29, 2010

Before: Mercure, J.P., Peters, Lahtinen, McCarthy 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

As the result of an ongoing investigation, petitioner, a prison inmate, was served with a misbehavior report charging him with drug possession and smuggling. Following a tier III disciplinary hearing, he was found guilty of drug possession. That determination was affirmed on administrative appeal, and petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the investigating officer, confidential reports and testimony of the confidential informant who purchased marihuana from petitioner provide substantial evidence to support the determination of guilt (see Matter of Shabazz v Artus, 72 AD3d 1299, 1300 [2010]; Matter of Mitchell v Bezio, 69 AD3d 1281, 1281 [2010]). Contrary to petitioner's assertion, the Hearing Officer made a proper assessment of the confidential informant's reliability by conducting an independent examination in camera (see Matter of Parker v Fischer, 70 AD3d 1086, 1087 [2010]). Additionally, contrary to his contention, petitioner had no right to access the confidential information (see Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12 NY3d 709 [2009]). We have examined petitioner's remaining contentions and find them to be either unpreserved or without merit.

Mercure, J.P., Peters, Lahtinen, McCarthy and Garry, JJ., concur.

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

20101118

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