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

IN RE: DANIEL WILLIAMS, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, Respondent.


Decided: July 01, 2010

Before:  Mercure, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ. Daniel Williams, Pine City, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.


Calendar Date:  May 12, 2010

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

After a correction officer received an anonymous note stating that an inmate has been assaulted, further investigation led to petitioner, after which he was served with a misbehavior report charging him with assaulting an inmate and violent conduct.   Following a tier III disciplinary hearing, he was found guilty of both charges and his administrative appeal was unsuccessful.   Petitioner thereafter commenced this CPLR article 78 proceeding.   We confirm.   The misbehavior report, the hearing testimony and the confidential testimony and documents reviewed by the Hearing Officer in camera provide substantial evidence to support the determination of guilt (see Matter of Mitchell v. Bezio, 69 AD3d 1281, 1281-1282 [2010];  Matter of McFarlane v. Fischer, 65 AD3d 769, 770 [2009] ).   Although the Hearing Officer did not interview the confidential informant personally, we find that his inquiry of the correction officer who received the information was adequate to determine its reliability (see Matter of Mitchell v. Bezio, 69 AD3d at 1281;  Matter of Vassell v. Fischer, 48 AD3d 876 [2008] ).   Petitioner's denials that he was involved in the incident raised a credibility question to be determined by the Hearing Officer (see Matter of Benvenutti v. Fischer, 67 AD3d 1105 [2009] ).   Finally, there is no indication from our review of the record that the Hearing Officer was biased, or that the determination flowed from anything other than the evidence presented against petitioner (see Matter of Quartieri v New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072 [2010] ).

Mercure, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur.

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


Michael J. Novack

Clerk of the Court

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