Matter of Jones v Fischer

Matter of Jones v Fischer 2015 NY Slip Op 02176 Decided on March 19, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 19, 2015
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[*1]In the Matter of CLEMON JONES, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: January 20, 2015
Before: McCarthy, J.P., Garry, Devine and Clark, JJ.

Clemon Jones, Attica, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

MEMORANDUM AND JUDGMENT

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 Corrections and Community Supervision which placed petitioner in involuntary protective custody.

Petitioner commenced this CPLR article 78 proceeding challenging an administrative determination directing that he be placed in involuntary protective custody (hereinafter IPC). Although petitioner has been transferred to another correctional facility and is no longer in IPC, his challenge to the IPC determination remains justiciable insofar as he seeks expungement of such determination from his institutional record (see Matter of Hynes v Fischer, 101 AD3d 1188, 1189 [2012]). To that end, our review of the record establishes that the IPC recommendation

and the testimony at the hearing, including that of petitioner, provide substantial evidence to support the determination (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209-1210 [2009]; Matter of Dawes v Fischer, 53 AD3d 902, 903 [2008]). Contrary to petitioner's contention, the Hearing Officer was not required to assess the reliability of the statements made by the inmate who threatened petitioner's safety. Such statements, which were relayed through the testimony of the correction officer who investigated the incident, were not confidential (see Matter of Moore v Rabideau, 250 AD2d 1008, 1009 [1998]) and, in any event, the information regarding the nature and basis for the threat was corroborated by petitioner's own testimony. To the extent that petitioner asserts that the Hearing Officer was precluded from acting as the Hearing Officer given his involvement in the related disciplinary matter resulting from the confrontation between [*2]petitioner and the inmate who threatened him, this issue is unpreserved as he failed to raise it at the hearing (see Matter of Boswell v Coombe, 231 AD2d 940, 940 [1996]).

McCarthy, J.P., Garry, Devine and Clark, JJ., concur.

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