Matter of McCarthy v Prack

Matter of McCarthy v Prack 2015 NY Slip Op 02155 Decided on March 19, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 19, 2015
518695

[*1]In the Matter of DERICK McCARTHY, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: January 20, 2015
Before: Peters, P.J., Garry, Lynch and Devine, JJ.

Derick McCarthy, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During the course of an investigation, correction officials received confidential information that petitioner stood watch while another inmate urinated in a water bottle belonging to a correction officer. As a result of this incident, he was charged in a misbehavior report with committing an unhygienic act and assaulting staff. Following a tier III disciplinary hearing, he

was found guilty of the charge of committing an unhygienic act [FN1]. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Petitioner contends, among other things, that the determination is not supported by substantial evidence. Based upon our review of the record, we must agree. Although there was considerable testimony presented both at the hearing and before the Hearing Officer in camera [*2]establishing that an inmate urinated in a correction officer's water bottle, the evidence of petitioner's complicity in the act is not compelling. None of the correction officials or other witnesses who testified at the hearing personally observed petitioner standing watch while his fellow inmate committed the act in question. Although a confidential informant related that petitioner acted as the lookout, the reliability of this individual's testimony was not sufficiently corroborated by the testimony of the other confidential informant (compare Matter of Ferguson v Goord, 13 AD3d 949, 950 [2004]; Matter of Abdur-Raheem v Mann, 200 AD2d 918, 919 [1994], affd 85 NY2d 113 [1995]; Matter of Spirles v Coughlin, 187 AD2d 863, 863-864 [1992]). Consequently, the determination must be annulled (see generally Matter of Debose v Selsky, 12 AD3d 1003, 1004 [2004]; Matter of Greene v Coughlin, 196 AD2d 923, 923-924 [1993]). In view of our disposition, we need not address petitioner's remaining claims.

Peters, P.J., Garry, Lynch and Devine, JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted and the Commissioner of Corrections and Community Supervision is directed to expunge all references to this matter from petitioner's institutional record and to restore any good time lost as a result thereof.

Footnotes

Footnote 1: We note that, pursuant to 7 NYCRR 270.3 (b), an inmate who acts as an accessory in the violation of a prison disciplinary rule is deemed to have violated that rule as well.