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In re McDuffy

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of EDWARD McDUFFY, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: May 6, 2013

Edward McDuffy, Beacon, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Spain and Garry, JJ.

MEMORANDUM AND JUDGMENT

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.

Correction officials received information from a confidential source that petitioner had tried to make sexual advances toward him. As a result, petitioner was charged in a misbehavior report with attempting to engage in sexual acts. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Elliot v Fischer, 94 A.D.3d 1326, 1327 [2012]; Matter of Wilson v Fischer, 58 A.D.3d 997, 998 [2009]). Petitioner was not entitled to disclosure of the confidential information (see Matter of Brooks v Fischer, 92 A.D.3d 987, 988 [2012]; Matter of Phipps v Fischer, 82 A.D.3d 1396, 1397 [2011]). Insofar as the misbehavior report failed to set forth precise times and dates of the sexual acts, "greater detail may not always be possible if it is necessary to keep the information confidential" (Matter of Martin v Coughlin, 173 A.D.2d 1039, 1040 [1991]). Moreover, although the Hearing Officer did not personally interview the confidential informant, he adequately confirmed the informant's credibility through questioning the correction official who spoke with this person (see Matter of Elliott v Fischer, 94 A.D.3d at 1327; Matter of Rivera v Artus, 82 A.D.3d 1431 [2011]) and by the corroborating evidence contained in the confidential memoranda. Petitioner's remaining contentions have not been preserved for our review.

Peters, P.J., Lahtinen, Spain and Garry, JJ., concur.

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


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