Opinion
519963
2015-08-06
In the Matter of Marcus TELESFORD, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur.
Marcus Telesford, Comstock, petitioner pro se. Eric T. Schneiderman, 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 a prison disciplinary rule.
During a search of petitioner's cell, a correction officer found handwritten material containing gang-related references. As a result, petitioner was charged in a misbehavior report with possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of the charge. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, written documentation that was recovered from petitioner's cell and hearing testimony provide substantial evidence supporting the determination of guilt ( see Matter of Smith v. Prack, 98 A.D.3d 780, 781, 949 N.Y.S.2d 806 [2012]; Matter of Moore v. Fischer, 76 A.D.3d 737, 737, 907 N.Y.S.2d 348 [2010] ). There is no merit to petitioner's claim that the Hearing Officer erred in failing to independently assess the reliability of certain confidential information inasmuch as such information did not constitute evidence upon which the determination was based ( see Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012]; Matter of Daniel v. Fischer, 86 A.D.3d 892, 892, 927 N.Y.S.2d 480 [2011] ). Rather, the confidential information was the certification of the correction officer trained in deciphering gang-related references, and we find that his training and qualifications were adequately established without further inquiry by the Hearing Officer. We have considered petitioner's remaining claims, including his challenge to the sufficiency of the videotape, and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.