Matter of Pompey v Prack

Matter of Pompey v Prack 2015 NY Slip Op 04363 Decided on May 21, 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: May 21, 2015
519534

[*1]In the Matter of HASANI POMPEY, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: March 31, 2015
Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

Hasani Pompey, Pine City, petitioner pro se.

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

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation in which confidential information was received, correction officials discovered that petitioner perpetrated an assault upon another inmate, causing him injuries. As a result, he was charged in a misbehavior report with assaulting another inmate and engaging in violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. The determination was subsequently reversed upon administrative appeal and a rehearing was ordered. Following the rehearing, petitioner was again found

guilty as charged. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, rehearing testimony and confidential information considered by the Hearing Officer in camera provide substantial evidence to support the determination of guilt (see Matter of Lopez v New York State Dept. of Corr. & Community Supervision, 125 AD3d 1032, 1033 [2015]; Matter of McCain v Fischer, 104 AD3d 1009, 1009 [2013]). Contrary to petitioner's contention, "the Hearing Officer made an independent assessment of the reliability of the confidential information based upon his interview with the correction sergeant, who conducted the investigation" (Matter of White v Fischer, 121 AD3d [*2]1478, 1479 [2014]; see Matter of Spencer v Annucci, 122 AD3d 1043, 1044 [2014]). Nor are we persuaded by petitioner's claim that the rehearing was not conducted in a timely manner (see Matter of Jay v Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909 [2014]; Matter of McFadden v Prack, 120 AD3d 853, 855 [2014], lv dismissed 24 NY3d 930 [2014], lv denied 24 NY3d 908 [2014]).

Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.

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