IN RE: Felipe OLIVERO (2023)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

During an investigation, it was discovered that petitioner attempted to compel a fellow incarcerated individual to receive drugs through the mail and threatened him with physical harm if he refused.  As a result, petitioner was charged in a misbehavior report with making threats and extortion.  Following a tier III disciplinary hearing, petitioner was found guilty as charged.  That determination was affirmed on administrative review and petitioner commenced this CPLR article 78 proceeding.

The misbehavior report, hearing testimony and confidential testimony provide substantial evidence supporting the determination of guilt (see Matter of Killimayer v. Annucci, 199 A.D.3d 1151, 1151, 156 N.Y.S.3d 586 [3d Dept. 2021];  Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [3d Dept. 2018]).  Moreover, the Hearing Officer personally interviewed the confidential source, an interview that was sufficiently detailed in order for the Hearing Officer to make an independent assessment of the reliability and credibility of the testimony and information provided (see Matter of Cajigas v. Rodriguez, 214 A.D.3d 1293, 1293–1294, 184 N.Y.S.3d 631 [3d Dept. 2023];  Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [3d Dept. 2016]).  The exculpatory testimony of petitioner and his witnesses created a credibility issue for the Hearing Officer to resolve (see Matter of Hoyes v. Annucci, 213 A.D.3d 1011, 1012, 180 N.Y.S.3d 925 [3d Dept. 2023];  Matter of Santos v. Annucci, 209 A.D.3d 1084, 1085, 175 N.Y.S.3d 616 [3d Dept. 2022]).  Petitioner's remaining contentions, to the extent not specifically addressed, have been considered and found to be without merit.

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

Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.