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In the Matter of Matthew Boyle v. Brian Fischer

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


November 10, 2011

IN THE MATTER OF MATTHEW BOYLE, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Peters, J.P., Lahtinen, Stein, Garry 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Pursuant to an investigation conducted by the Inspector General's office, petitioner was identified as collaborating with a prison employee to bring marihuana into the facility and was thereafter charged in a misbehavior report with drug possession, smuggling, soliciting and possessing personal employee information. Following a tier III disciplinary hearing, he was found guilty of all charges. That determination was upheld on administrative appeal with a reduced penalty, and petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the investigator who prepared it, confidential testimony and confidential documents provide substantial evidence to support the determination of guilt (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]). Our review of the confidential testimony and documents reveals that there was sufficient proof and corroborating evidence to allow the Hearing Officer to independently assess the confidential informant's credibility (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Fareedullah v Fischer, 64 AD3d 1024, 1026 [2009], lv denied 13 NY3d 713 [2009]).

We have examined petitioner's remaining contentions and find them to be either unpreserved or without merit.

Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111110

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