Matter of Washington v Fischer

Matter of Washington v Fischer 2010 NY Slip Op 08411 [78 AD3d 1399] November 18, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Viscount Washington, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Viscount Washington, Malone, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

As the result of an ongoing investigation, petitioner, a prison inmate, was served with a misbehavior report charging him with drug possession and smuggling. Following a tier III disciplinary hearing, he was found guilty of drug possession. That determination was affirmed on administrative appeal, and petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the investigating officer, confidential reports and testimony of the confidential informant who purchased marihuana from petitioner provide substantial evidence to support the determination of guilt (see Matter of Shabazz v Artus, 72 AD3d 1299, 1300 [2010]; Matter of Mitchell v Bezio, 69 AD3d 1281, 1281 [2010]). Contrary to petitioner's assertion, the Hearing Officer made a proper assessment of the confidential informant's reliability by conducting an independent examination in camera (see Matter of Parker v Fischer, 70 AD3d 1086, 1087 [2010]). Additionally, contrary to his contention, petitioner had no right to access the confidential information (see Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12 NY3d 709 [2009]). We have examined petitioner's remaining contentions and find them to be either unpreserved or without merit. [*2]

Mercure, J.P., Peters, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.