Matter of Mark Gantt v Roy Girdich

Matter of Gantt v Girdich 2003 NY Slip Op 18119 [1 AD3d 668] November 6, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Mark Gantt, Petitioner,
v
Roy Girdich, as Superintendent of Franklin Correctional Facility, et al., Respondents.

— Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Superintendent of Franklin Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits destroying state property. The charges stemmed from an investigation prompted by a report from a correction officer that sand had been found in the oil pans of several facility lawn mowers. The investigating officer testified that a confidential informant named petitioner as the culprit. Although the Hearing Officer interviewed that informant in camera, no attempt was made to assess the credibility and reliability of the information (compare Matter of Miller v New York State Dept. of Correctional Servs., 295 AD2d 714 [2002]; Matter of Kemp v Goord, 285 AD2d 943 [2001]). Our review of the in camera material indicates that it was insufficiently detailed to provide an independent assessment of reliability and credibility (cf. Matter of Roman v Goord, 284 AD2d 604 [2001]). The circumstances of the disclosure of petitioner's involvement raise serious suspicions regarding reliability. In addition, not only did the Hearing Officer fail to ask general questions reflecting on credibility, he failed to address possible motives for false testimony which were raised by another witness. Under the circumstances, we find the evidence insufficient to support the determination at issue (see Matter of Gomez v Coughlin, 227 AD2d 882 [1996]).

Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Adjudged that the determination is annulled, without costs, petition granted, and respondents are directed to expunge all references to this matter from petitioner's institutional records and restore any restitution paid by petitioner.