Opinion
519894
06-25-2015
In the Matter of Matthew COOPER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Alissa R. Hull, Prisoners' Legal Services of New York, Plattsburgh, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Alissa R. Hull, Prisoners' Legal Services of New York, Plattsburgh, for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, DEVINE and CLARK, JJ.
Opinion 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 which found petitioner guilty of violating certain prison disciplinary rules.During the course of an investigation, a correction sergeant received confidential information identifying petitioner as one of the inmates involved in an attack upon another inmate. As a result, she prepared a misbehavior report charging petitioner with engaging in violent conduct and assaulting an inmate. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
The penalty was subsequently modified upon discretionary review.
Initially, we note that confidential information may provide substantial evidence supporting a prison disciplinary determination as long as it is sufficiently detailed and probative that the Hearing Officer may make an independent assessment of the reliability of the information (see Matter of Muller v. Fischer, 125 A.D.3d 1034, 1035, 1 N.Y.S.3d 585 [2015] ; Matter of Rosa v. Fischer, 112 A.D.3d 1009, 1010, 976 N.Y.S.2d 314 [2013], lv. denied 22 N.Y.3d 864, 2014 WL 1243632 [2014] ). Petitioner contends that the Hearing Officer failed to independently assess the reliability of the confidential information considered here. Based upon our review of the record, we must agree. The misbehavior report was the primary evidence supporting the disciplinary determination, as the sergeant who prepared it did not testify at the hearing. The sergeant based the report upon confidential memoranda that she prepared after obtaining incriminating information directly from the confidential source. The memoranda, however, do not contain additional information or corroborating details to facilitate verification of the source's reliability (see Matter of Stone v. Bezio, 69 A.D.3d 1280, 1280–1281, 896 N.Y.S.2d 477 [2010] ; Matter of Daise v. Giambruno, 279 A.D.2d 911, 911–912, 719 N.Y.S.2d 616 [2001] ). Moreover, the Hearing Officer did not personally interview either the source or the sergeant who obtained the information. In view of this, we agree with petitioner that the necessary independent assessment of the confidential information was lacking and that the determination must be aned and all references thereto expunged from petitioner's institutional record (see Matter of Muller v. Fischer, 125 A.D.3d at 1035, 1 N.Y.S.3d 585 ; Matter of Stone v. Bezio, 69 A.D.3d at 1281, 896 N.Y.S.2d 477 ; compare Matter of Catlin v. Gouverneur Correctional Facility, 38 A.D.3d 1025, 1026, 832 N.Y.S.2d 309 [2007] ).
Although the Hearing Officer also appears to have relied upon handwritten notes purportedly written by petitioner that were found in the victim's cell, no evidence was presented that these notes were, in fact, written by petitioner.
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ADJUDGED that the determination is annulled, without costs, petition granted, and respondent is directed to expunge all references to this matter from petitioner's institutional record and to restore any good time taken as a result thereof.