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In the Matter of Jesus Perez v. Brian Fischer

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


November 17, 2011

IN THE MATTER OF JESUS PEREZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Correction officials learned through a confidential source that petitioner had threatened another inmate with a homemade weapon in the shower area. As a result, petitioner was charged in a misbehavior report with making threats and possessing a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers familiar with the incident and the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Vidal-Ortiz v Fischer, 84 AD3d 1627, 1628 [2011]; Matter of Rivera v Artus, 82 AD3d 1431 [2011]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Jackson v Prack, 84 AD3d 1660, 1660 [2011]; Matter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]). Although petitioner asserts that the Hearing Officer failed to properly verify the credibility of the confidential informant, this claim is belied by the record, which discloses that the Hearing Officer conducted an independent examination of this individual in camera (see Matter of Washington v Fischer, 78 AD3d 1399, 1399-1400 [2010], lv denied 16 NY3d 707 [2011]; Matter of Estevez v Fischer, 63 AD3d 1402, 1403 [2009]). Petitioner's remaining contentions have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal.

Mercure, J.P., Peters, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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