IN RE: Delroy KEMP

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

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

Decided: July 26, 2001

Before:  MERCURE, J.P., CREW III, CARPINELLO, MUGGLIN and ROSE, JJ. Delroy Kemp, Alden, 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 a prison disciplinary rule.

 Petitioner was found guilty of violating the prison disciplinary rule that prohibits conspiracy to assault another inmate.   The misbehavior report, included in the evidence presented at the disciplinary hearing, revealed that the reporting correction officer had received information from a confidential source indicating that petitioner, as the leader of an inmate gang, had issued an order directing other gang members to stab an inmate victim.   Petitioner's challenge to the sufficiency of this evidence is without merit.   A prison disciplinary determination may be based upon confidential evidence, even though the inmate has not been given access to it, so long as the Hearing Officer has made an independent assessment of the reliability of both the information and its source (see, Matter of Abdur Raheem v. Mann, 85 N.Y.2d 113, 119, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  Matter of Otero v. Coughlin, 225 A.D.2d 841, 638 N.Y.S.2d 824).   Such an assessment was made here as the Hearing Officer personally interviewed both the confidential informant and the correction officer to whom the information was conveyed.   Petitioner's remaining contentions, including those alleging procedural errors and Hearing Officer bias, have been examined and found to be without merit (see, Matter of Shaird v. Selsky, 268 A.D.2d 721, 722, 702 N.Y.S.2d 664).

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

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