Mullen v. Goord

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty following a Tier III hearing of violating inmate rules 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [violating facility visiting procedures]). Although the proof is entirely circumstantial, the determination of the Hearing Officer is supported by substantial evidence (see, Matter of Fereira v Coombe, 239 AD2d 905 ). It is well established that a Hearing Officer may rely on confidential information (see, Matter of Abdur-Raheem v Mann, 85 NY2d 113 , 119; Matter of Vogelsang v Coombe, 105 AD2d 913 , affd 66 NY2d 835 ). By refusing to attend the last day of the hearing, petitioner waived notification that confidential information was received that day (see, Matter of Tifer v Coughlin, 214 AD2d 1036 , 1037; see also, Matter of Cowart v Pico, 213 AD2d 853 , lv denied 85 NY2d 812 ; cf., Matter of Freeman v Coughlin, 138 AD2d 824 ). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Balio, JJ.