Opinion
July 16, 1993
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Green, J.P., Pine, Lawton, Boomer and Boehm, JJ.
Determination unanimously confirmed and petition dismissed. Memorandum: Respondents' determination is supported by substantial evidence. The Hearing Officer erred in failing to notify petitioner before issuing a determination that confidential information would be considered and in failing to articulate a reason for keeping that information confidential (see generally, Matter of Odom v. Kelly, 152 A.D.2d 1010; Matter of Freeman v. Coughlin, 138 A.D.2d 824, 825-826; Matter of Boyd v Coughlin, 105 A.D.2d 532, 533-534). We conclude that the error was harmless, however, because the contents of the confidential information were identical to a misbehavior report filed by a Correction Officer, which was part of the evidence at the hearing, and because the evidence, without considering the confidential information, was legally sufficient to sustain the charges (see, Matter of Boyd v. Coughlin, supra). Additionally, petitioner was found not guilty of possessing a weapon, which was the only charge to which the confidential report was relevant, and therefore he was not prejudiced by its use.