Matter of Smythe v Fischer

Matter of Smythe v Fischer 2013 NY Slip Op 00369 Decided on January 24, 2013 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: January 24, 2013
513943

[*1]In the Matter of FRANCIS SMYTHE, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: December 17, 2012
Before: Peters, P.J., Rose, Spain, Stein and Garry, JJ.


Thomas Terrizzi, Buffalo, for petitioner.
Eric T. Schneiderman, Attorney General, Albany
(Kathleen M. Treasure 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, a correction sergeant received confidential information that petitioner was planning to escape from the correctional facility while on an outside trip and was going to have the escorting correction officers assaulted. Consequently, petitioner was charged in a misbehavior report with attempting to escape and engaging in violent conduct. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and testimony of the correction officials familiar with the investigation, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Williams v Fischer, 78 AD3d 1353, 1354 [2010], lv denied 16 NY3d 706 [2011]). Contrary to petitioner's claim, the Hearing Officer conducted a proper inquiry to ascertain the credibility and reliability of the information provided by the confidential source by interviewing the correction sergeant who spoke with this individual [*2](see Matter of White v Prack, 94 AD3d 1299 [2012]; Matter of Williams v Fischer, 78 AD3d at 1354). Petitioner's remaining claims have either not been preserved for our review or are lacking in merit.

Peters, P.J., Rose, Spain, Stein and Garry, JJ., concur.

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