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IN RE: Damon WHEELER (2002)

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

IN RE: Damon WHEELER, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: August 01, 2002

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and LAHTINEN, JJ. Damon Wheeler, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possession of stolen property and smuggling after a correction officer obtained information that petitioner had taken a tape deck from the office of the recreation supervisor and given it to another inmate.   Following a tier III disciplinary hearing, petitioner was found guilty of the charges and he commenced the instant CPLR article 78 proceeding challenging this determination.

Contrary to petitioner's claim, we find that the determination is supported by substantial evidence.   The correction officer who testified at the hearing stated that she received information from confidential sources that petitioner had taken the tape deck from the recreation supervisor's office.   The testimony provided by the confidential informants, whose reliability was adequately assessed by the Hearing Officer, confirmed the facts contained in the misbehavior report (see, Matter of Salahuddin v. Selsky, 293 A.D.2d 900, 742 N.Y.S.2d 134;  Matter of Ruiz v. Goord, 289 A.D.2d 810, 735 N.Y.S.2d 434).   Although petitioner denied taking the tape deck, this presented a credibility issue for the Hearing Officer to resolve (see, Matter of Jackson v. Selsky, 288 A.D.2d 802, 733 N.Y.S.2d 527;  Matter of Santiago v. Selsky, 288 A.D.2d 732, 732 N.Y.S.2d 740).   The fact that the tape deck was not found in petitioner's possession does not negate his guilt of the charges.

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

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