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Matter of Perez v. Coombe

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 2, 1996
224 A.D.2d 1035 (N.Y. App. Div. 1996)

Opinion

February 2, 1996

Appeal from the Supreme Court, Wyoming County, Dadd, J.

Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.


Determination unanimously confirmed without costs and petition dismissed. Memorandum: Following a Tier III disciplinary hearing, the Hearing Officer found petitioner guilty of possessing a weapon in violation of inmate rule 113.10 ( 7 NYCRR 270.2 [B] [14] [i]). In reaching that determination, the Hearing Officer indicated that he relied upon the written misbehavior report. In his answer, however, respondent attached ten pages of memoranda written by different Correction Officers about an incident in the yard that resulted in petitioner being charged with possession of a weapon. Petitioner asserts that he had no knowledge of the existence of the memoranda and argues that the Hearing Officer erred in relying upon confidential information without informing him, during the hearing, of his intention to do so and his reason for keeping the information confidential (see, Matter of Odom v Kelly, 152 A.D.2d 1010; Matter of Boyd v. Coughlin, 105 A.D.2d 532).

If a Hearing Officer intends to rely upon confidential information, he must so inform the inmate during the hearing and provide the reason why the information cannot be disclosed (see, Matter of Odom v. Kelly, supra; Matter of Boyd v. Coughlin, supra). There is no indication, however, that the Hearing Officer relied upon anything other than the written misbehavior report in reaching his determination. The written misbehavior report, authored by a Correction Officer who personally observed the incident, provides substantial evidence to support the determination (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140).


Summaries of

Matter of Perez v. Coombe

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 2, 1996
224 A.D.2d 1035 (N.Y. App. Div. 1996)
Case details for

Matter of Perez v. Coombe

Case Details

Full title:In the Matter of JOSEPH PEREZ, Petitioner, v. PHILIP COOMBE, JR., as…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 2, 1996

Citations

224 A.D.2d 1035 (N.Y. App. Div. 1996)
637 N.Y.S.2d 906

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