State of New York Supreme Court, Appellate Division Third Judicial Department
March 10, 2011
IN THE MATTER OF KENYATTA B. PHIPPS, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
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 certain prison disciplinary rules.
The opinion of the court was delivered by: Robert D. Mayberger Clerk of the Court
MEMORANDUM AND JUDGMENT
Calendar Date: February 2, 2011
Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ.
Based upon an investigation, petitioner, a prison inmate, was identified as a gang member who was involved in a conspiracy to assault several prison guards. As a result, he was charged in a misbehavior report with gang activity, conspiring to commit an assault on staff and conspiring to participate in group violence, and he was found guilty of those charges after a tier III disciplinary hearing. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, hearing testimony and confidential witness testimony provide substantial evidence to support the determination of guilt (see Matter of Sterling v Bezio, 76 AD3d 1165, 1165 ; Matter of Williams v Fischer, 75 AD3d 706 , lv granted 15 NY3d 891 ). Petitioner's claims that the charges against him were in retaliation for a grievance he filed presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamphear v Fischer, 76 AD3d 1166, 1166 ). The credibility of the confidential informant was established by the Hearing Officer's review of the interview transcript and the inclusion of that transcript in the hearing record (see generally Matter of Williams v Fischer, 78 AD3d 1353, 1354 , lv denied ___ NY3d ___ [Feb. 24, 2011]; Matter of Sanders v Haggett, 72 AD3d 1372, 1373 ). Additionally, petitioner did not have the right to review the confidential information (see Matter of Washington v Fischer, 78 AD3d 1399, 910 NYS2d 706 ; Matter of Perretti v Fischer, 58 AD3d 999, 1002 , lv denied 12 NY3d 709 ).
Our review of the record reveals that the determination of guilt flowed from the evidence presented, rather than any alleged hearing officer bias (see Matter of Lamphear v Fischer, 76 AD3d at 1166; Matter of Hamilton v Bezio, 76 AD3d 1125, 1126 ). Finally, we find that the penalty assessed for the planned assault on correction officers was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Smiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1150 ; Matter of Rivera v Goord, 38 AD3d 964, 964-965 ).
Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.
Mercure, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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