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Walker v. Fischer

Supreme Court, Appellate Division, Third Department, New York.
Jan 23, 2014
978 N.Y.S.2d 915 (N.Y. App. Div. 2014)

Opinion

2014-01-23

In the Matter of Curtis WALKER, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Curtis Walker, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.


Curtis Walker, 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 Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following an investigation in which information was received from a confidential source, correction officials discovered that a letter intercepted in the mail room had been placed in the mail by petitioner. The letter contained gang-related materials, as well as an altered state-issued razor blade. As a result, petitioner was charged in a misbehavior report with possessing gang-related materials, altering state property and violating facility correspondence procedures. Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Petitioner's sole contention is that the Hearing Officer failed to properly ascertain the credibility and reliability of the confidential source who provided the information upon which the determination was based. We find this argument to be without merit. The Hearing Officer's in-depth in camera interview with the correction sergeant who spoke to the confidential source provided a basis for him to independently assess the credibility and reliability of the confidential information ( see Matter of Vicente v. New York State Dept. of Corr. & Community Supervision, 107 A.D.3d 1203, 1203, 966 N.Y.S.2d 705 [2013]; Matter of Thompson v. Martuscello, 105 A.D.3d 1218, 1219, 963 N.Y.S.2d 456 [2013] ). The sergeant's testimony, both in camera and at the hearing, together with the misbehavior report, provide substantial evidence to support the determination of guilt ( see Matter of Janis v. Prack, 106 A.D.3d 1297, 1297, 964 N.Y.S.2d 775 [2013], lv. denied 21 N.Y.3d 864, 2013 WL 4711156 [2013]; Matter of Smythe v. Fischer, 102 A.D.3d 1039, 1040, 957 N.Y.S.2d 918 [2013] ). Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Perez v. Fischer, 89 A.D.3d 1310, 1311, 932 N.Y.S.2d 598 [2011]; Matter of Ramos v. Selsky, 48 A.D.3d 863, 864, 849 N.Y.S.2d 913 [2008] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed. PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ., concur.


Summaries of

Walker v. Fischer

Supreme Court, Appellate Division, Third Department, New York.
Jan 23, 2014
978 N.Y.S.2d 915 (N.Y. App. Div. 2014)
Case details for

Walker v. Fischer

Case Details

Full title:In the Matter of Curtis WALKER, Petitioner, v. Brian FISCHER, as…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Jan 23, 2014

Citations

978 N.Y.S.2d 915 (N.Y. App. Div. 2014)
113 A.D.3d 977
2014 N.Y. Slip Op. 397

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