IN RE: Cirilo ESTEVEZ (2009)

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.

Petitioner, an inmate, was served with a misbehavior report that charged him with fighting, threats, violent conduct, and possession of unauthorized organizational material and a weapon.   The charges arose from the investigation of an altercation between fellow inmates.   Following the incident, a search of the cell of one of the inmates revealed a letter, purportedly from members of a gang, that directed the inmate to perform a “hit” on a member of a rival gang or face repercussions.   The investigation further revealed that petitioner provided a weapon to the inmate to use in performing the hit and, after the inmate refused, petitioner was involved with other members of the gang in assaulting the inmate.   Following a tier III disciplinary hearing, petitioner was found guilty on all charges.   Following an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding to challenge the determination of guilt.

 We confirm.   The determination of guilt is supported by substantial evidence in the form of the factually specific misbehavior report and the testimony of the correction officer who authored the report, along with the additional investigative reports and the testimony of a confidential informant (see Matter of Farrow v. Prack, 57 A.D.3d 1065, 1065, 868 N.Y.S.2d 392 [2008], lv. denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009];  Matter of Fogan v. Goord, 45 A.D.3d 1012, 1012, 845 N.Y.S.2d 531 [2007];  Matter of Ermmarino v. New York State Dept. of Correctional Servs., 43 A.D.3d 517, 517, 840 N.Y.S.2d 231 [2007] ).   Contrary to petitioner's assertion, the Hearing Officer, having personally interviewed the confidential informant, had sufficient grounds upon which to make an independent assessment of his credibility (see Matter of Samuel v. Fischer, 53 A.D.3d 960, 960, 861 N.Y.S.2d 523 [2008];  Matter of Morillo v. Goord, 38 A.D.3d 947, 947, 832 N.Y.S.2d 301 [2007] ).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

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