IN RE: Robert JOHNSON (2006)

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.

Following an investigation into allegations by a coworker that petitioner, who was participating in a temporary release program, was in possession of a gun while at work, a misbehavior report was issued against petitioner charging him with failing to comply with temporary release rules and regulations which required that he not possess a weapon and refrain from any menacing behavior.   Petitioner was found guilty of the charge following a tier III disciplinary hearing.   After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

 Contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence supporting the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990];  Matter of Pabon v. Goord, 6 A.D.3d 833, 834, 773 N.Y.S.2d 916 [2004] ).   We are also unpersuaded by petitioner's contention that the Hearing Officer failed to independently assess the reliability of the information received by the confidential source.   Although the name of the coworker who reported the incident was not revealed, there was no in camera testimony during the hearing.   Rather, the parole officer who investigated the allegation and authored the misbehavior report relayed the information provided by the coworker and the manager to whom the incident was reported, which included specifics as to the date, time and location of the incident.   Notwithstanding the identity of the coworker not being revealed, the detailed information, as well as other testimony at the hearing corroborating the sequence of the events as reported, provided an independent basis for the Hearing Officer to assess the reliability and credibility of the information provided (see Matter of Salahuddin v. Selsky, 293 A.D.2d 900, 742 N.Y.S.2d 134 [2002], lv. denied 98 N.Y.2d 614, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002];  Matter of Chujoi v. Selsky, 272 A.D.2d 801, 708 N.Y.S.2d 921 [2000], lv. denied 95 N.Y.2d 762, 715 N.Y.S.2d 215, 738 N.E.2d 363 [2000];  see also Matter of Tusa v. Goord, 287 A.D.2d 907, 908, 731 N.Y.S.2d 788 [2001], appeal dismissed 98 N.Y.2d 646, 745 N.Y.S.2d 503, 772 N.E.2d 606 [2002];  Matter of Santiago v. Hoke, 183 A.D.2d 978, 979, 583 N.Y.S.2d 570 [1992], lv. denied 80 N.Y.2d 757, 588 N.Y.S.2d 825, 602 N.E.2d 233 [1992] ).   We have reviewed petitioner's remaining contention that the penalty was harsh and find it to be without merit.

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