IN RE: Reuben ROSS

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

IN RE: Reuben ROSS, Appellant, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: October 26, 2000

Before:  SPAIN, J.P., GRAFFEO, MUGGLIN, ROSE and LAHTINEN, JJ. Reuben Ross, Pine City, appellant in person. Eliot Spitzer, Attorney General (Gina M. Ciccone of counsel), Albany, for respondents.

Appeal from a judgment of the Supreme Court (Castellino, J.), entered January 7, 2000 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rules which prohibit inmates from smuggling and possession of a weapon.   After correction officers received confidential information that petitioner was carrying a weapon they discovered in petitioner's pocket a razor blade wrapped in cardboard and electrical tape.   The determination of guilt was affirmed upon petitioner's administrative appeal and he thereafter commenced this CPLR article 78 proceeding.   Supreme Court dismissed the petition and we affirm.

 Upon review of petitioner's procedural arguments, we conclude that they are without merit.   Initially, because the determination of petitioner's guilt was not based upon the confidential information which prompted the frisk, we reject petitioner's claim that the Hearing Officer was required to assess the credibility of the confidential informant (see, Matter of Bradstreet v. Goord, 268 A.D.2d 832, 700 N.Y.S.2d 777).   Furthermore, contrary to petitioner's argument, he was not improperly denied witnesses by the Hearing Officer.   The testimony sought by petitioner again related to the confidential informant and was not material to the issue of whether petitioner possessed or smuggled a weapon (see, Matter of Williams v. Goord, 270 A.D.2d 744, 705 N.Y.S.2d 129).   In addition, the witnesses were properly denied on the ground of facility security in that the identity of the confidential informant could have been revealed (see, 7 NYCRR 254.5[a];  Matter of Sanabria v. Senkowski, 274 A.D.2d 799, 711 N.Y.S.2d 569).

The remaining arguments advanced by petitioner have been examined and found to be unpersuasive.

ORDERED that the judgment is affirmed, without costs.


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