        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

145
TP 11-01688
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF LASEAN BROWN, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI
OF COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Wyoming County [Mark H.
Dadd, A.J.], entered August 11, 2011) to review a determination of
respondent. The determination found after a Tier III hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the determination is unanimously
annulled on the law and facts without costs, the petition is granted
and respondent is directed to expunge from petitioner’s institutional
record all references to the violation of inmate rules 102.10 (7 NYCRR
270.2 [B] [3] [i]) and 107.20 (7 NYCRR 270.2 [B] [8] [iii]).

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a Tier III disciplinary
hearing, that he violated inmate rules 102.10 (7 NYCRR 270.2 [B] [3]
[i] [threats of violence]) and 107.20 (7 NYCRR 270.2 [B] [8] [iii]
[false statements]). We agree with petitioner that the determination
is not supported by substantial evidence.

     Petitioner was charged with violating the two rules at issue
based upon allegations that he wrote a threatening letter to a
counselor at a correctional facility. Respondent contends that the
inmate misbehavior report, the testimony of the correction officer who
wrote that report, and several handwriting exemplars submitted by or
seized from petitioner constitute substantial evidence establishing
that he violated the rules in question. We reject that contention.
The misbehavior report contains no firsthand information. Rather, the
correction officer who wrote it interviewed a counselor who told him
that unnamed inmate informants said that petitioner was going to write
a letter after the counselor discharged petitioner from certain duties
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                                                         TP 11-01688

at the facility. Similarly, the correction officer who wrote the
report testified that he interviewed the counselor and compared the
letter that petitioner purportedly wrote to handwriting exemplars that
he obtained from petitioner, and the correction officer concluded
therefrom that petitioner had written the letter.

     It is well settled that misbehavior reports may constitute
substantial evidence to support a determination (see generally People
ex rel. Vega v Smith, 66 NY2d 130, 139). Where, however, “the
misbehavior report was not written by a correction officer who
witnessed the conduct in question, the record must contain facts
establishing some indicia of reliability to the hearsay before the
report may be considered sufficiently relevant and probative to
constitute substantial evidence” (Matter of McIntosh v Coughlin, 155
AD2d 762, 763). We note that a hearing officer is not required to
interview informants to determine the credibility of their hearsay
statements in the misbehavior report but, rather, New York courts
apply the federal standard that “any reasonable method for
establishing the informant’s reliability will suffice” to establish
the credibility of such inmates (Matter of Abdur-Raheem v Mann, 85
NY2d 113, 121). An informant’s credibility may be established where
the information provided by the informant is “sufficiently detailed”
to enable a hearing officer to assess the informant’s reliability
(Matter of Debose v Selsky, 12 AD3d 1003, 1004), or the information
provided to the hearing officer establishes that the informant
provided the information based on personal knowledge (cf. Matter of
Holmes v Senkowski, 238 AD2d 629). Here, however, the Hearing Officer
had no information to enable him to assess the credibility of the
unnamed inmate informants who spoke to the counselor about the letter
that petitioner allegedly wrote, and thus the misbehavior report does
not constitute substantial evidence supporting the petition (see
Matter of Daise v Giambruno, 279 AD2d 911, 911-912).

     Furthermore, respondent is correct that “the trier of fact (here,
the Hearing Officer) may make his or her own comparison of handwriting
samples in the absence of expert testimony on the subject . . . Thus,
the handwriting samples alone—the . . . letter[] and exemplars—can
form the basis for a determination of guilt in a case such as this if
there are sufficient similarities between the two to comprise
substantial evidence that they were written by the same person”
(Matter of Smith v Coughlin, 198 AD2d 726, 726). Upon our independent
review of those exemplars, we are unable to find that there are
sufficient similarities between them “to comprise substantial evidence
that they were written by the same person” (id.). Consequently, we
conclude that the determination is not supported by substantial
evidence and must be annulled. Because it appears from the record
that petitioner has already served his administrative penalty, the
appropriate remedy is expungement of all references to the violations
of those rules from his institutional record (see Matter of Cody v
Fischer, 46 AD3d 1371).
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                                             TP 11-01688




Entered:   January 31, 2012         Frances E. Cafarell
                                    Clerk of the Court
