Opinion
2012-12-13
In the Matter of Hector TORRES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City (Winston R. Brownlow of counsel), and Milton Zelermyer, Legal Aid Society of New York, New York City (John Boston of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City (Winston R. Brownlow of counsel), and Milton Zelermyer, Legal Aid Society of New York, New York City (John Boston of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.
MERCURE, J.P.
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.
An investigation based upon confidential information revealed that petitioner had offered to pay other inmates to assault certain security staff and had attempted to send another inmate's identification card through the prison mail. As a result, petitioner was charged in a misbehavior report with smuggling, demonstration and threats and, following a tier III disciplinary hearing, was found guilty of all charges. That determination was affirmed upon administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
Initially, we note that petitioner has abandoned his challenge to the finding of guilt with regard to the smuggling charge. With respect to the remaining charges, however, we must annul. While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing Officer to make an independent assessment to determine its reliability and credibility ( see Matter of Abdur–Raheem v. Mann, 85 N.Y.2d 113, 121, 623 N.Y.S.2d 758, 647 N.E.2d 1266 [1995];Matter of Stone v. Bezio, 69 A.D.3d 1280, 1280, 896 N.Y.S.2d 477 [2010];Matter of Catlin v. Gouverneur Correctional Facility, 38 A.D.3d 1025, 1026, 832 N.Y.S.2d 309 [2007] ). Here, the basis for the charges of demonstration and threats was a confidential note received by a correction officer. However, the note itself was not contained in the record, and its contents were never related in detail; thus, the Hearing Officer relied exclusively on the officer's testimony that he had used the informant before and that he considered the source to be reliable. Under these circumstances, we cannot conclude that the determination as to those two charges is supported by substantial evidence and, therefore, it must be annulled to that extent ( see Matter of Stone v. Bezio, 69 A.D.3d at 1281, 896 N.Y.S.2d 477;Matter of Colon v. Goord, 23 A.D.3d 933, 934, 804 N.Y.S.2d 451 [2005];Matter of Daise v. Giambruno, 279 A.D.2d 911, 911–912, 719 N.Y.S.2d 616 [2001] ). Although the penalty has already been served, because a loss of good time was imposed, the matter must be remitted to respondent for a redetermination of the penalty ( see Matter of Linnen v. Prack, 92 A.D.3d 986, 987, 937 N.Y.S.2d 701 [2012],lv. dismissed20 N.Y.3d 905, 2012 WL 5845624 [Nov. 20, 2012]; Matter of Vega v. Fischer, 91 A.D.3d 1007, 1007, 936 N.Y.S.2d 364 [2012] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of demonstration and threats and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty on the remaining violation; and, as so modified, confirmed.