Summary
In Matter of Nelson v. Coughlin (148 A.D.2d 779, 780) we said that "there must be some basis in the record from which the Hearing Officer can make an independent assessment of the [confidential] informant's credibility".
Summary of this case from Matter of Carvalho v. CoughlinOpinion
March 2, 1989
Appeal from the Supreme Court, Sullivan County (Hanofee, J.).
Petitioner commenced this proceeding to annul a determination that he be placed in involuntary protective custody for stabbing another inmate, to expunge from his records all references to this determination and to restore him to his prehearing status. The determination was based on a Hearing Officer's in camera examination of Lieutenant R. Brimmer, a correction officer who had interviewed, among others, the confidential informant. Supreme Court dismissed the petition, concluding that there was sufficient information to establish the confidential informant's reliability and petitioner's culpability. From the judgment entered thereon, petitioner appeals and argues that the determination should be annulled because of the Hearing Officer's failure to independently appraise the confidential informant's credibility.
Preliminarily, we reject respondents' suggestion that this proceeding is moot because petitioner has completed his term in involuntary protective custody. Petitioner is entitled to an accurately maintained disciplinary record (see, e.g., Matter of Grant v. Senkowski, 146 A.D.2d 948). Thus, his application retains vitality.
In a prison disciplinary proceeding, the inmate is entitled to basic due process protection (Matter of Jones v. Smith, 64 N.Y.2d 1003, 1005), which is not infringed when, for safety reasons, a confidential informant's statements about an inmate are provided to a Hearing Officer by someone who interviewed the informant (see, e.g., Matter of Gibson v. LeFevre, 133 A.D.2d 978, 979-980). Of course, there must be some basis in the record from which the Hearing Officer can make an independent assessment of the informant's credibility (see, e.g., Matter of Wynter v. Jones, 135 A.D.2d 1032, 1033; Matter of Harris v. Coughlin, 116 A.D.2d 896, 897, lv denied 67 N.Y.2d 610, 1047). Here, the Hearing Officer's determination shows exclusive reliance on Brimmer's testimony that the informant was reliable in the past and that the informant's information was supported by other information received by Brimmer. Indeed, our review of the Hearing Officer's in camera examination of Brimmer reveals that the Hearing Officer asked if Brimmer was satisfied with the informant's reliability. Furthermore, Brimmer's testimony is not sufficiently detailed so that the Hearing Officer could have made an independent assessment of the informant's credibility (compare, Matter of Colon v. Coughlin, 147 A.D.2d 802). Such evidence reflects nothing more than third-party credibility assessment, which is insufficient (Matter of Wynter v. Jones, supra). Accordingly, the judgment must be reversed and the petition granted.
Judgment reversed, on the law, without costs, determination annulled, petition granted, and respondents are directed to expunge all references to this proceeding from petitioner's files and to restore petitioner to his prehearing status. Mahoney, P.J., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.