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In re Vicente

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of JUAN VICENTE, Petitioner,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: May 6, 2013

Juan Vicente, Pine City, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Peters, P.J., Rose, Stein and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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

Contrary to petitioner's contention, the misbehavior report, testimony at the hearing and confidential information provide substantial evidence to support the determination finding petitioner guilty of violating the prison disciplinary rules that prohibit making threats and engaging in conduct involving the threat of violence (see Matter of Hayward v Fischer, 101 A.D.3d 1308, 1309 [2012]). The charges stemmed from an investigation into a letter identifying petitioner's plans to retaliate against a correction officer. A review of the record establishes that the Hearing Officer made a proper and sufficient inquiry of the correction officer who interviewed the confidential informant so as to independently assess the informant's reliability and credibility (see Matter of Williams v Fischer, 18 N.Y.3d 888, 890 [2012]; Matter of Smythe v Fischer, 102 A.D.3d 1039, 1040 [2013]). Petitioner's denial of the charges presented a credibility issue for the Hearing Officer to resolve (see Matter of Ford v Prack, 101 A.D.3d 1276, 1277 [2012]). Petitioner's remaining contentions are either unpreserved for our review or without merit.

Peters, P.J., Rose, Stein and McCarthy, JJ., concur.

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


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