IN RE: Derrick L. COBB

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

IN RE: Derrick L. COBB, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: March 23, 2000

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and MUGGLIN, JJ. Derrick L. Cobb, Malone, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from conspiring to take over the facility, committing acts which are detrimental to the facility, interfering with an employee 1 and creating a disturbance.   According to the misbehavior report, the charges stem from an incident wherein petitioner encouraged a group of inmates to surround and assault two correction officers who were attempting to restrain another inmate by yelling statements such as “Are you gonna let this happen?!”   Upon petitioner's administrative appeal, the penalty was modified but the determination of guilt was affirmed.   Petitioner subsequently commenced this CPLR article 78 proceeding and we confirm.

 In our view, the detailed misbehavior and investigative reports and the testimony of the correction officer who authored them, together with the testimony of the correction officers assaulted by the inmates and the information from confidential sources, provides substantial evidence to support the determination of petitioner's guilt (see, Matter of Orr v. Selsky, 263 A.D.2d 742, 694 N.Y.S.2d 502, 503;  Matter of Flynn v. Coombe, 239 A.D.2d 725, 657 N.Y.S.2d 494;  Matter of Watts v. Coombe, 235 A.D.2d 952, 953, 653 N.Y.S.2d 406).   Contrary to petitioner's contentions, the Hearing Officer conducted personal interviews with the confidential witnesses in order to independently assess their reliability (see, Matter of Feliciano v. Selsky, 239 A.D.2d 799, 658 N.Y.S.2d 147) and was entitled to resolve the credibility issues created by the exculpatory version of events offered by petitioner and some of his inmate witnesses (see, Matter of Harris v. Corcoran, 261 A.D.2d 740, 687 N.Y.S.2d 911).

 As for petitioner's claim that the misbehavior report was not based upon personal knowledge, the correction officer who drafted the report was authorized to do so because he “ascertained the facts” from individuals with personal knowledge of the incident (7 NYCRR 251-3.1[b];  see, Foster v. Coughlin, 76 N.Y.2d 964, 965, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Sime v. Department of Correctional Servs., Commr., 252 A.D.2d 692, 693, 675 N.Y.S.2d 661).   Moreover, petitioner's request for the misbehavior reports served upon the inmates who perpetrated the assault was properly denied as irrelevant to petitioner's defense to the charges against him (see, Matter of Williams v. Selsky, 257 A.D.2d 932, 684 N.Y.S.2d 667).   Finally, nothing in the record substantiates petitioner's argument that the Hearing Officer was biased or considered evidence outside of the record (see, Matter of Lyde v. Senkowski, 239 A.D.2d 714, 715, 658 N.Y.S.2d 479).

 Petitioner's remaining contentions, including his challenge to the penalty imposed, i.e., 18 months in the special housing unit, loss of privileges for 18 months and recommended loss of 18 months of good time, have been reviewed and found to be lacking in merit.

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


1.   Petitioner pleaded guilty to the charge of interfering with an employee.



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