Matter of Torres v Fischer

Matter of Torres v Fischer 2012 NY Slip Op 08589 Decided on December 13, 2012 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: December 13, 2012
513939

[*1]In the Matter of HECTOR TORRES, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: November 13, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.


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.

MEMORANDUM AND JUDGMENT


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 [*2]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 NY2d 113, 121 [1995]; Matter of Stone v Bezio, 69 AD3d 1280, 1280 [2010]; Matter of Catlin v Gouverneur Correctional Facility, 38 AD3d 1025, 1026 [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 AD3d at 1281; Matter of Colon v Goord, 23 AD3d 933, 934 [2005]; Matter of Daise v Giambruno, 279 AD2d 911, 911-912 [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 AD3d 986, 987 [2012], lv dismissed ___ NY3d ___ [Nov. 20, 2012]; Matter of Vega v Fischer, 91 AD3d 1007, 1007 [2012]).

Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

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.