State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 28, 2016 519887
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In the Matter of SAMUEL
CHANDLER,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: December 8, 2015
Before: Garry, J.P., Rose, Lynch and Clark, JJ.
__________
Prisoners' Legal Services of New York, Albany (Rosa Cohen
Cruz of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan 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 finding petitioner guilty of
violating certain prison disciplinary rules.
During the course of an investigation, correction officials
received confidential information identifying petitioner as the
leader of an unauthorized gang who ordered another inmate to
assault a rival gang member and threatened to physically harm the
inmate if he did not carry out the assault by a certain date. As
a result, petitioner was charged in a misbehavior report with
conspiring to assault an inmate, engaging in violent conduct,
making threats and engaging in gang activity. He was found
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guilty of the charges following a tier III disciplinary hearing,
and the determination was later affirmed on administrative appeal
with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the testimony of its
author and the confidential information reviewed by the Hearing
Officer in camera provide substantial evidence supporting the
determination of guilt (see Matter of Baez v Bellnier, 131 AD3d
771 [2015]; Matter of Pompey v Prack, 128 AD3d 1251, 1252
[2015]). Contrary to petitioner's claim, the Hearing Officer
conducted an independent assessment of the reliability of the
confidential information by personally interviewing the
confidential source (see Matter of Perez v Fischer, 100 AD3d
1324, 1324 [2012]). Additionally, so as to further weigh the
credibility of the information, the Hearing Officer questioned
the correction sergeant who spoke to the informant during the
course of the investigation into the conspiracy (see Matter of
Williams v Fischer, 18 NY3d 888, 890 [2012]).
Turning to petitioner's procedural arguments, he asserts
that the misbehavior report contains inaccuracies with respect to
the time, date and location of the incident, thereby depriving
him of adequate notice of the charges. However, the Hearing
Officer found the essential details provided by the confidential
informant to be correct and, even if the misbehavior report
contains some inaccuracies in this regard, we conclude that the
report as a whole, which summarized the results of the
investigation and set forth the specific rule violations, was
sufficiently detailed to afford petitioner notice of the charges
to enable him to prepare a defense (see Matter of Ponder v
Fischer, 54 AD3d 1094, 1095 [2008]; compare Matter of Simmons v
Fischer, 105 AD3d 1288, 1289 [2013]). Moreover, we find no merit
to petitioner's claim that he was improperly denied the right to
call the inmate who was ordered to commit the assault as a
witness, inasmuch as the inmate never agreed to testify and
executed a refusal form stating, "I don't intend to testify" (see
Matter of Broadie v Annucci, 131 AD3d 1324, 1324-1325 [2015];
Matter of Cortorreal v Annucci, 123 AD3d 1337, 1338 [2014], lv
granted 25 NY3d 961 [2015]; Matter of Jamison v Fischer, 119 AD3d
1306 [2014]). We have considered petitioner's remaining
arguments, including his claim that there are gaps in the hearing
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transcript that preclude meaningful review, and find them to be
lacking in merit.
Garry, J.P., Rose, Lynch and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court