IN RE: Ernest HENLEY

Reset A A Font size: Print

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

IN RE: Ernest HENLEY, Petitioner, v. Glenn S. GOORD, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.

Decided: December 21, 2000

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and ROSE, JJ. Ernest Henley, Comstock, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

 Petitioner was found guilty of assaulting another inmate stemming from his involvement in the near fatal stabbing of a fellow inmate.   Among the evidence introduced against petitioner at his disciplinary hearing was the misbehavior report and the testimony of its author indicating that the stabbing victim identified petitioner from a photographic array as the individual who attacked him.   This proof, together with the documents presented at the hearing and the confidential information which revealed a possible motive for petitioner's attack on the victim, provide substantial evidence of petitioner's guilt (see, Matter of Sime v. Department of Correctional Servs., 252 A.D.2d 692, 675 N.Y.S.2d 661;  Matter of Lyde v. Senkowski, 239 A.D.2d 714, 658 N.Y.S.2d 479).   Contrary to petitioner's contention, the Hearing Officer independently assessed the reliability of the confidential witnesses during a personal interview (see, Matter of Cobb v. Selsky, 270 A.D.2d 747, 706 N.Y.S.2d 199;  Matter of Feliciano v. Selsky, 239 A.D.2d 799, 658 N.Y.S.2d 147) and properly resolved any credibility issues created by petitioner's claims of innocence and his allegation that the author of the misbehavior report lied about randomly selecting the photographs included in the array (see, Matter of Dong Chong v. Goord, 240 A.D.2d 834, 835, 659 N.Y.S.2d 813;  Matter of Young v. Coombe, 227 A.D.2d 799, 801, 642 N.Y.S.2d 443).

 Addressing petitioner's challenges to the misbehavior report, the correction officer who issued the report was authorized to do so, despite the fact that he lacked personal knowledge of the incident, because he ascertained the facts by interviewing the victim (see, 7 NYCRR 251-3.1[b];  see also, Matter of Di Rose v. New York State Dept. of Correction, 228 A.D.2d 868, 644 N.Y.S.2d 577).   Finally, the report was properly endorsed and set forth the details of the incident with sufficient accuracy to enable petitioner to prepare a defense (see, Matter of Headley v. Goord, 274 A.D.2d 714, 715, 711 N.Y.S.2d 214;  Matter of Dumpson v. McGinnis, 247 A.D.2d 804, 669 N.Y.S.2d 431).

We have reviewed petitioner's remaining arguments, including his claims that the Hearing Officer was biased and denied him the right to call witnesses, and find that they are not meritorious.

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

PETERS, J.

CARDONA, P.J., MERCURE, CREW III and ROSE, JJ., concur.

Copied to clipboard