In the Matter of Jelan Miller, Petitioner, v. New York State Department of Correctional Services et al., Respondents

In the Matter of Jelan Miller, Petitioner, v New York State Department of Correctional Services et al., Respondents. [743 NYS2d 632] [MAJORITY] —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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on an inmate, possession of a weapon and participation in unauthorized organizational activities. The misbehavior report relates that petitioner, a member of an inmate gang known as the “Crips,” attacked an inmate whom he believed to be a member of a rival gang known as the “Bloods,” cutting him above his left eye with a razor-type weapon. Evidence presented at the disciplinary hearing included the misbehavior report, testimony given by the correction officer who investigated the incident, the investigating officer’s written memorandum and the taped testimony of a confidential informant. The informant related that he had been walking next to the victim when another inmate slashed his face. He was able to identify petitioner as the perpetrator of the attack from a photo array. We conclude that substantial evidence supports the determination of petitioner’s guilt. Petitioner’s contention that the Hearing Officer failed to make an independent assessment of the informant’s credibility is incorrect. Our in camera review discloses that the Hearing Officer conducted a personal interview with the informant during which he assessed his reliability and credibility prior to admitting his confidential testimony in evidence (see, Matter of Johnson v Goord, 287 AD2d 923; Matter of Kemp v Goord, 285 AD2d 943, 944; Matter of Roman v Goord, 284 AD2d 604). The exculpatory testimony given by petitioner and his inmate witnesses presented an issue of credibility for resolution by the Hearing Officer who was free to credit the testimony of some of the hearing witnesses over that given by others (see, Matter of Melendez v Goord, 285 AD2d 782, 783). Petitioner’s remaining contentions have been reviewed and found to be without merit. Mercure, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.