Bowen v. Annucci — 142 A.D.3d 1216

Majority

p. 1216

In the Matter of Gary Bowen, Petitioner, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.

[37 NYS3d 459]—

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 finding petitioner guilty of violating certain prison disciplinary rules.

Following an investigation finding that petitioner and several other inmates — all members of the Bloods gang — conspired to promote violent conduct against certain staff members, petitioner was charged in a misbehavior report with gang activity, making threats, assault on staff, violent conduct and action detrimental to the facility. He was found guilty of all charges after a tier III disciplinary hearing. On administrative appeal, the assault and threats charges were dismissed, and the penalty as to the remaining three charges was reduced. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, the testimony of the correction officer who participated in the investigation and prepared the report and the confidential information considered by the Hearing Officer provided substantial evidence to support petitioner’s guilt (see Matter of Baez v Bellnier, 131 AD3d 771 , 771 [2015]; Matter of Smith v Fischer, 64 AD3d 1061 , 1061-1062 [2009], lv denied 13 NY3d 712 [2009]). The confidential information was detailed, included multiple independent sources and revealed valid reasons for finding the information reliable (see Matter of Williams v Fischer, 18 NY3d 888 , 890 [2012]; Matter of Grate v Annucci, 122 AD3d 1053 , 1054 [2014]). The Hearing Officer made proper inquiry of the correction officer who participated in the investigation of the incident to verify the reliability and credibility of the confidential

p. 1217

informants (see Matter of Norris v Fischer, 71 AD3d 1211 , 1212 [2010]; Matter of Farrow v Prack, 57 AD3d 1065 , 1065 [2008], lv denied 12 NY3d 704 [2009]) and, under such circumstances, it was not necessary for the Hearing Officer to personally interview the confidential informants (see Matter of Spencer v Annucci, 122 AD3d 1043 , 1044 [2014]; Matter of Williams v Fischer, 78 AD3d 1353 , 1354 [2010], lv denied 16 NY3d 706 [2011]). Although petitioner’s witnesses denied gang membership or the existence of the alleged conspiracy, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Zimmerman v Annucci, 139 AD3d 1205 , 1206 [2016]; Matter of Norris v Fischer, 71 AD3d at 1212-1213 ).

Contrary to petitioner’s contention, the administrative reversal of two of the charges does not provide a ground for reversing the remaining three charges as repugnant. The reasons for the reversal are not set forth in the record, and the dispositive inquiry is whether the remaining three charges are supported by substantial evidence {see e.g. People ex rel. Vega v Smith, 66 NY2d 130 , 139 [1985]), which they are. Petitioner’s further arguments have been considered and are without merit.

Peters, P.J., Egan Jr., Devine, Mulvey and Aarons, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Cases cited

Williams v. Fischer 18 NY3d 888 N.Y. 2012-02-09 at 890 p. 1216
Grate v. Annucci 122 AD3d 1053 N.Y. App. Div. 2014-11-13 at 1054 p. 1216
Norris v. Fischer 71 AD3d 1211 N.Y. App. Div. 2010-03-04 at 1212 p. 1217
Farrow v. Prack 57 AD3d 1065 N.Y. App. Div. 2008-12-04 at 1065 p. 1217
Spencer v. Annucci 122 AD3d 1043 N.Y. App. Div. 2014-11-13 at 1044 p. 1217
Williams v. Fischer 78 AD3d 1353 N.Y. App. Div. 2010-11-10 at 1354 p. 1217
Zimmerman v. Annucci 139 AD3d 1205 N.Y. App. Div. 2016-05-12 at 1206 p. 1217
People ex rel. Vega v. Smith 66 NY2d 130 N.Y. 1985-10-15 at 139 p. 1217