Adams v. Fischer

• Decision Date: 17 April 2014
• Citation: 2014 N.Y. Slip Op. 02645,983 N.Y.S.2d 746,116 A.D.3d 1269
• Parties: In the Matter of Sherman ADAMS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1269
983 N.Y.S.2d 746
2014 N.Y. Slip Op. 02645

In the Matter of Sherman ADAMS, Petitioner,
v.
Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 17, 2014.

Sherman Adams, Pine City, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for 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.

During the course of an investigation in which confidential information was received, correction officials discovered that petitioner was involved with other inmates in illegal gang activities that included, among other things, arranging to have another inmate assaulted and bringing weapons into the correctional facility. As a result, he was charged in a misbehavior report with assault, possessing a weapon, smuggling and engaging in gang-related activity. He was found guilty of the charges following a lengthy tier III disciplinary hearing and the determination was affirmed on administrative appeal.¹ This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and related documentation, together with the considerable hearing testimony and the confidential information reviewed by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt ( see Matter of Pelaez v. Early, 102 A.D.3d 1030, 1030, 957 N.Y.S.2d 913 [2013];Matter of Garner v. Selsky, 47 A.D.3d 1167, 1168, 849 N.Y.S.2d 456 [2008] ). “Although the Hearing Officer did not personally interview the confidential informant, a review of the confidential material establishes that the Hearing Officer made an independent assessment of the reliability and credibility of the information provided” (Matter of Concepcion v. Selsky, 1 A.D.3d 685, 685–686, 766 N.Y.S.2d 921 [2003] [citation omitted] ). The conflicting testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve ( see Matter of Williams v. Fischer, 102 A.D.3d 1044, 958 N.Y.S.2d 238 [2013];Matter of Kimbrough v. Fischer, 96 A.D.3d 1256, 1257, 947 N.Y.S.2d 208 [2012] ). Moreover, given that the misbehavior report was prepared as the result of an ongoing investigation that was based largely upon...