IN RE: Remus SMITH

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

IN RE: Remus SMITH, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: July 23, 2009

Before:  PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ. Remus Smith, Dannemora, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

As the result of an investigation in which information was obtained from confidential sources, correction officials learned that petitioner and two other inmates had planned a revolt to take place in the facility's mosque during religious services and had also threatened another inmate who openly opposed their plan.   As a result, petitioner was charged in a misbehavior report with planning a demonstration, making threats and rioting.   He was found guilty of these charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, the testimony of its author and the confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Walton v. Selsky, 35 A.D.3d 923, 923, 825 N.Y.S.2d 571 [2006];  Matter of Berry v. Goord, 13 A.D.3d 947, 947, 787 N.Y.S.2d 439 [2004] ).   Contrary to petitioner's claim, our review of the record reveals that the Hearing Officer undertook a thorough and independent assessment of the reliability of the confidential informant through a personal interview with him (see Matter of Hernandez v. Selsky, 50 A.D.3d 1340, 1341, 855 N.Y.S.2d 754 [2008] ) as well as interviews with correction officials to whom he provided information (see Matter of Staton v. Goord, 41 A.D.3d 1105, 1106, 839 N.Y.S.2d 820 [2007] ).   Although the inmates and the correction officers who testified as witnesses at the hearing denied overhearing petitioner planning a revolt or threatening another inmate, and petitioner also denied any such wrongdoing, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Perez v. Dubray, 55 A.D.3d 1119, 865 N.Y.S.2d 765 [2008];  Matter of Peana v. Fischer, 54 A.D.3d 1126, 1127, 864 N.Y.S.2d 577 [2008] ).   Petitioner's claims that the hearing was not timely completed and that the Hearing Officer was biased are not preserved for our review given his failure to raise them at the hearing (see Matter of Soto-Rodriguez v. Goord, 252 A.D.2d 782, 783, 677 N.Y.S.2d 185 [1998] ).   Petitioner's remaining contentions, to the extent that they are properly before us, are unavailing.

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

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