Matter of Estevez v Fischer

Matter of Estevez v Fischer 2009 NY Slip Op 05052 [63 AD3d 1402] June 18, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

In the Matter of Cirilo Estevez, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Cirilo Estevez, Attica, 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 certain prison disciplinary rules.

Petitioner, an inmate, was served with a misbehavior report that charged him with fighting, threats, violent conduct, and possession of unauthorized organizational material and a weapon. The charges arose from the investigation of an altercation between fellow inmates. Following the incident, a search of the cell of one of the inmates revealed a letter, purportedly from members of a gang, that directed the inmate to perform a "hit" on a member of a rival gang or face repercussions. The investigation further revealed that petitioner provided a weapon to the inmate to use in performing the hit and, after the inmate refused, petitioner was involved with other members of the gang in assaulting the inmate. Following a tier III disciplinary hearing, petitioner was found guilty on all charges. Following an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding to challenge the determination of guilt.

We confirm. The determination of guilt is supported by substantial evidence in the form of the factually specific misbehavior report and the testimony of the correction officer who authored the report, along with the additional investigative reports and the testimony of a confidential informant (see Matter of Farrow v Prack, 57 AD3d 1065, 1065 [2008], lv denied 12 [*2]NY3d 704 [2009]; Matter of Fogan v Goord, 45 AD3d 1012, 1012 [2007]; Matter of Ermmarino v New York State Dept. of Correctional Servs., 43 AD3d 517, 517 [2007]). Contrary to petitioner's assertion, the Hearing Officer, having personally interviewed the confidential informant, had sufficient grounds upon which to make an independent assessment of his credibility (see Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]; Matter of Morillo v Goord, 38 AD3d 947, 947 [2007]).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

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