Opinion
December 26, 1991
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Doerr, Green, Balio and Lawton, JJ.
Determination unanimously annulled on the law and matter remitted to respondent Superintendent for a new hearing. Memorandum: In this CPLR article 78 proceeding in which petitioner challenges a prison disciplinary determination finding that he carried out a contract "hit" by fatally stabbing another inmate, respondents concede that procedural defects in the conduct of the hearing require us to annul the determination. The primary issue for our resolution is whether a rehearing is appropriate, as respondents contend, or barred, as petitioner asserts.
We conclude that the confidential information relied upon by the Hearing Officer constitutes substantial evidence to support the determination, and that a rehearing is not per se prohibited (see, Matter of Hartje v Coughlin, 70 N.Y.2d 866; see also, Matter of Bryant v Coughlin, 77 N.Y.2d 642, 650). Where sufficient evidence to support the charge was adduced at the first hearing, a court annulling a determination for procedural irregularity may remit the matter for further administrative proceedings (see, Matter of Laureano v Kuhlmann, 75 N.Y.2d 141, 148-149; Matter of Coleman v Coombe, 65 N.Y.2d 777, 780; Matter of Shipman v Coughlin, 98 A.D.2d 823, 824). Accordingly, we conclude that a new hearing is the proper remedy in this case. The procedural errors raised by petitioner can be cured at a new hearing, the charge against petitioner is of the utmost seriousness, and petitioner has served only part of his penalty.
Addressing petitioner's final contention, we conclude that he should not be permitted to know the identity of the confidential informants or to examine their statements (see, Matter of Gross v Henderson, 79 A.D.2d 1086, 1087, lv denied 53 N.Y.2d 605; Matter of Harris v Coughlin, 126 Misc.2d 747, 749).