IN RE: Juan NOVA

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

IN RE: Juan NOVA, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: August 07, 2008

Before:  CARDONA, P.J., SPAIN, LAHTINEN, KANE and STEIN, JJ. Juan Nova, Stormville, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

According to information provided by a confidential informant, petitioner was observed participating in the assault of another inmate, where that inmate was, among other things, stabbed in the neck.   As a result, petitioner was charged in a misbehavior report with assault on an inmate and possession of a weapon.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of the assault charge and not guilty of the weapon possession charge.   That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

 We confirm.   The determination of guilt is supported by substantial evidence in the form of the misbehavior report and testimony adduced at the hearing, including the confidential testimony considered by the Hearing Officer in camera (see Matter of Jackson v. McGinnis, 47 A.D.3d 1100, 1100-1101, 848 N.Y.S.2d 903 [2008] ).   Regarding petitioner's assertion that the misbehavior report was defectively vague, we find that the report as a whole gave petitioner adequate notice of the nature of the charges against him such that he was afforded the opportunity to prepare a defense (see Matter of Abdul-Khaliq v. Goord, 34 A.D.3d 872, 872, 822 N.Y.S.2d 742 [2006] ).   We find similarly unavailing petitioner's contention that the Hearing Officer failed to make an independent assessment of the confidential informant's reliability inasmuch as the record reveals that the Hearing Officer personally interviewed the informant (see Matter of Morillo v. Goord, 38 A.D.3d 947, 947, 832 N.Y.S.2d 301 [2007] ).   Petitioner's remaining contentions have been examined and found to be without merit.

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

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