IN RE: Kereem BERRY

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

IN RE: Kereem BERRY, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: December 23, 2004

Before:  MERCURE, J.P., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Kareem Berry, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with assaulting another inmate after a correction officer received confidential information positively identifying him as the assailant.   He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, together with the testimony of its author and the in camera testimony of the confidential informant, constitute substantial evidence supporting the determination of guilt (see Matter of Berry v. Portuondo, 6 A.D.3d 848, 849, 775 N.Y.S.2d 110 [2004];  Matter of Concepcion v. Selsky, 1 A.D.3d 685, 686, 766 N.Y.S.2d 921 [2003] ).   Contrary to petitioner's claim, the Hearing Officer properly ascertained the reliability of the confidential informant by undertaking an independent examination of him in camera (see Matter of Ward v. Murphy, 302 A.D.2d 839, 840, 754 N.Y.S.2d 607 [2003];  Matter of Petty v. Selsky, 289 A.D.2d 859, 860, 734 N.Y.S.2d 508 [2001], lv. denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835 [2002] ).   Furthermore, the record reveals that appropriate extensions were obtained and the hearing was commenced and completed in a timely manner (see 7 NYCRR 251-5.1;  Matter of Stokes v. Goord, 254 A.D.2d 558, 558, 680 N.Y.S.2d 126 [1998], lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 420, 708 N.E.2d 177 [1999] ).

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

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