Matter of Hill v. Fischer

• Decision Date: 14 January 2010
• Docket Number: 507481
• Citation: 2010 NY Slip Op 358,893 N.Y.S.2d 339,69 A.D.3d 1103
• Parties: In the Matter of ROBERT HILL, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 1103

893 N.Y.S.2d 339

2010 NY Slip Op 358

In the Matter of ROBERT HILL, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, Respondent.

507481

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

Decided January 14, 2010.

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.

A correction sergeant conducted an investigation into the circumstances under which an inmate had received two puncture wounds to the back of his head. He determined that petitioner had inflicted the wounds through the use of a pen. As a result, petitioner was charged in a misbehavior report with assaulting an inmate, engaging in violent conduct and using a weapon. Following the reversal of a determination rendered after an initial tier III disciplinary hearing finding petitioner guilty of the charges, a rehearing was conducted. Thereafter, petitioner was again found guilty of the charges and the determination was upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author and the confidential information considered by the Hearing Officer, provide substantial evidence supporting the determination of guilt (see Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Toledo v Selsky, 12 AD3d 824, 824-825 [2004]). Contrary to petitioner's claim, our review of the confidential information discloses that there was adequate corroborative evidence and proof from which the Hearing Officer could independently assess the credibility and reliability of such information (see Matter of Fareedullah v Fischer, 64 AD3d 1024, 1026 [2009], lv denied 13 NY3d 713 [2009]; Matter of Moore v Goord, 279 AD2d 682, 683 [2001]). Moreover, petitioner has failed to preserve his contention that the Hearing Officer did not make a sufficient inquiry into the reasons two inmate witnesses refused to testify inasmuch as such witnesses executed witness refusal forms and petitioner did not raise any objection at the hearing (see Matter of Tafari v Brown, 47 AD3d 979 [2008], lv denied 10 NY3d 708 [2008]). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

PETERS, J.P., SPAIN, KAVANAGH, STEIN and McCARTHY,...