                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517930
________________________________

In the Matter of ROBERT HAIGLER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Egan Jr. and Clark, JJ.

                             __________


     Robert Haigler, Romulus, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      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 which found petitioner
guilty of violating certain prison disciplinary rules.

      During the course of an investigation in which confidential
information was received, correction officials concluded that
petitioner used another inmate's personal identification number
(hereinafter PIN) and made three-way calls for the purpose of
conspiring with and soliciting various individuals to bring drugs
into the correctional facility during visitation. As a result,
he was charged in a misbehavior report with possessing drugs,
smuggling, making three-way calls, using another inmate's PIN and
violating facility visiting procedures. He was found guilty of
the charges following a tier III disciplinary hearing and the
                              -2-                517930

determination was affirmed on administrative appeal.   This CPLR
article 78 proceeding ensued.

      We annul the determination insofar as it found petitioner
guilty of possessing drugs, smuggling and violating facility
visiting procedures. Respondent maintains that the misbehavior
report, confidential testimony and transcribed telephone
conversations provide substantial evidence to support the
determination that petitioner conspired to introduce drugs into
the facility. "Hearsay in the form of confidential information
may provide substantial evidence to support a determination of
guilt when it is sufficiently detailed and probative to permit
the Hearing Officer to make an independent assessment of its
credibility and reliability" (Matter of Rosa v Fischer, 112 AD3d
1009, 1010 [2013], lv denied 22 NY3d 864 [2014] [citation
omitted]; see Matter of Williams v Fischer, 18 NY3d 888, 890
[2012]; Matter of Torres v Fischer, 101 AD3d 1281, 1282 [2012]).
A review of the record, however, reveals that large portions of
the transcribed calls are inaudible, and the investigator
provided insufficient detail to allow the Hearing Officer to
independently assess the credibility of the confidential
information (see Matter of Rosa v Fischer, 112 AD3d at 1011;
Matter of Torres v Fischer, 101 AD3d at 1282). Moreover, the
investigator relied, in part, upon a prior misbehavior report –
which charged petitioner with possession of drugs but was
dismissed – for her conclusion that petitioner committed the rule
violations at issue. Under these circumstances, we conclude that
the determination of guilt on the charges of possessing drugs,
smuggling and violating facility visiting procedures are
unsupported by substantial evidence. However, the record
supports the charges of making three-way calls and using another
inmate's PIN. Inasmuch as a loss of good time was imposed, the
matter must be remitted for a redetermination of the penalty (see
Matter of Rosa v Fischer, 112 AD3d at 1011; Matter of Torres v
Fischer, 101 AD3d at 1282).

      Lahtinen, J.P., Stein, McCarthy, Egan Jr. and Clark, JJ.,
concur.
                              -3-                  517930

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing drugs, smuggling and violating facility visiting
procedures and imposed a penalty; petition granted to that
extent, respondent is directed to expunge all references to these
charges from petitioner's institutional record, and matter
remitted to respondent for an administrative redetermination of
the penalty on the remaining violations; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
