MOSLEY v. GOORD (1997)

 The misbehavior report, augmented by the testimony of its author, constitutes sufficient evidence to support the determination of respondent that petitioner violated inmate rule 113.10 (7 NYCRR 270.2[B] [14] [i];  see, Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23;  Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616, 499 N.Y.S.2d 659, 490 N.E.2d 526;  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   The contention of petitioner that he was “set up” by correction officers presented an issue of credibility for the Hearing Officer (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Young v. Coombe, 227 A.D.2d 799, 801, 642 N.Y.S.2d 443).

 The contention of petitioner that he was entitled to further inquiry into the reliability of a confidential informant is without merit.   Although a Hearing Officer may not rely upon hearsay information provided by a confidential source without making an independent determination of the reliability of the information (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 623 N.Y.S.2d 758, 647 N.E.2d 1266), the information provided here was not relevant to the charge.   The charge was not based upon the confidential information, but upon the results of the search of petitioner's cube (see, Matter of Parker v. Laundree, 234 A.D.2d 727, 651 N.Y.S.2d 631;  Matter of Shabazz v. Coughlin, 212 A.D.2d 923, 622 N.Y.S.2d 389).   Moreover, the reference of the Hearing Officer to the statement in the misbehavior report regarding the confidential informant's tip does not require annulment in light of the substantial evidence of petitioner's guilt (see, Matter of Emmons v. Selsky, 238 A.D.2d 651, 656 N.Y.S.2d 967;  Matter of Gardiner v. Senkowski, 234 A.D.2d 708, 651 N.Y.S.2d 640;  Matter of Hernandez v. Coughlin, 206 A.D.2d 578, 579, 614 N.Y.S.2d 580, appeal dismissed and lv. denied 84 N.Y.2d 1024, 623 N.Y.S.2d 179, 647 N.E.2d 451).

 Finally, although it appears that one of the correction officers involved in the search of petitioner's cube did not sign the misbehavior report (see, 7 NYCRR 251-3.1[b] ), that omission does not provide a basis for annulment;  petitioner has not demonstrated that he was prejudiced thereby (see, Matter of Bolling v. Coombe, 234 A.D.2d 730, 651 N.Y.S.2d 632;  Matter of Smith v. Walker, 209 A.D.2d 799, 800, 618 N.Y.S.2d 477, lv. denied 85 N.Y.2d 807, 627 N.Y.S.2d 323, 650 N.E.2d 1325).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: