IN RE: Shawn JOHNSON

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

IN RE: Shawn JOHNSON, Petitioner, v. Glenn GOORD, as Commissioner of Correctional Services, Respondent.

Decided: October 25, 2001

Before CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and LAHTINEN, JJ. Shawn Johnson, Brocton, petitioner pro se. Eliot Spitzer, Attorney-General (Frank Brady of counsel), Albany, for respondent.

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

Petitioner was found guilty of violating the prison disciplinary rules that prohibit fighting, assault on an inmate and violent conduct.   The charges arose out of an incident that occurred in July 2000, when petitioner allegedly ordered and supervised an attack perpetrated on a fellow inmate who was beaten and stabbed by three other inmates.   Substantial evidence of petitioner's guilt was presented at the disciplinary hearing in the form of the misbehavior report, testimony given by the correction officer who wrote the report and a confidential statement provided by an inmate informant who had identified petitioner from a photo array as the instigator of the attack.   Our in camera review of the record discloses that the Hearing Officer made an independent assessment to determine that the informant was reliable and credible (see, Matter of Abdur-Raheem v.. Mann, 85 N.Y.2d 113, 123, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  Matter of Vega v. Goord, 274 A.D.2d 807, 808, 712 N.Y.S.2d 78).

We conclude that there is a sufficient evidentiary basis upon which to confirm the determination of petitioner's guilt (see, Matter of Vega v. Goord, supra, at 807, 712 N.Y.S.2d 78;  Matter of Torres v. Goord, 242 A.D.2d 800, 661 N.Y.S.2d 1016).   That the testimony given by petitioner and two of the inmates accused of carrying out the attack was at variance with the factual accounts given by other hearing witnesses presented an issue of credibility that was appropriately resolved by the Hearing Officer (see, Matter of Melendez v. Goord, 285 A.D.2d 782, 783, 727 N.Y.S.2d 206, 207;  Matter of Soto v. Goord, 275 A.D.2d 872, 873, 713 N.Y.S.2d 777).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

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