Matter of Melvin Rosario v Glenn S. Goord

Matter of Rosario v Goord 2004 NY Slip Op 07890 [12 AD3d 758] November 4, 2004 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Melvin Rosario, Petitioner, v Glenn S. Goord, Commissioner of Correctional Services, Respondent.

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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 certain prison disciplinary rules.

After correction officers received confidential information that petitioner had struck and injured another inmate, he was charged in a misbehavior report with violating the prison disciplinary rules prohibiting fighting, violent conduct and assault. He was found not guilty of fighting, but guilty of the remaining charges following a tier III disciplinary hearing. The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Based upon our review of the record, we find that the misbehavior report, together with the testimony of the correction officer who authored it and the testimony of the victim of the attack, provide substantial evidence supporting the determination of guilt (see Matter of Gonzalez v Selsky, 294 AD2d 734, 734-735 [2002]; Matter of Crosby v Selsky, 284 AD2d 702 [2001]). Although petitioner contends that the Hearing Officer erroneously failed to ascertain the reliability of the confidential informant, the record discloses that the information supplied by this source provided the impetus for the investigation of the incident, the circumstances of which were later related in detail by the victim at the hearing. Inasmuch as the [*2]determination of guilt was based on evidence independent of the information provided by the confidential source, the Hearing Officer's failure to verify the reliability of this individual was not error (see Matter of Garcia v Goord, 308 AD2d 609, 610 [2003]; Matter of Rivera v Goord, 261 AD2d 754, 755 [1999]). Petitioner's remaining claims have not been preserved for review due to his failure to raise them either at the disciplinary hearing or in his administrative appeal (see Matter of De La Rosa v Goord, 260 AD2d 824, 824-825 [1999]; Matter of Stanislas v Senkowski, 253 AD2d 972, 973 [1998]) and, in any event, are lacking in merit.

Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.