                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   516399
________________________________

In the Matter of JOSEPH MULLER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


      Matthew P. McGowan, Prisoners' Legal Services of New York,
Albany, for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondent.

                             __________


Garry, J.

      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.

      During the course of an investigation, correction officials
obtained confidential information that petitioner used threats
and intimidation to pressure other inmates to refrain from
participating in the process to elect members of the inmate
liaison committee (hereinafter ILC). As a result, he was charged
in a misbehavior report with engaging in conduct involving the
threat of violence (rule 104.11) and organizing inmates to engage
                              -2-                516399

in actions detrimental to the facility (rule 104.12). During a
rehearing on these disciplinary charges,1 various witnesses
testified on behalf of petitioner, and the Hearing Officer also
received confidential information through his in camera interview
with two correction officials involved in the investigation. The
Hearing Officer relied heavily upon this confidential information
in finding petitioner guilty of the charges. The determination
of guilt was later affirmed on administrative appeal with a
modified penalty. Petitioner then commenced this CPLR article 78
proceeding.

      Petitioner contends that the determination is not supported
by substantial evidence. "While hearsay evidence in the form of
confidential information may provide substantial evidence 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" (Matter of Torres v Fischer, 101 AD3d 1281, 1282
[2012] [citations omitted]; see Matter of Colon v Goord, 23 AD3d
933, 934 [2005]). Notably, where the Hearing Officer obtains
such information through the testimony of a correction officer
who has interviewed a confidential informant, the questioning
must be thorough and specific, to allow an adequate basis to
gauge the informant's knowledge and reliability (see Matter of
Williams v Fischer, 18 NY3d 888, 890 [2012]). The Hearing
Officer may not base his or her conclusion solely upon the
correction officer's assessment of the confidential informant's
truthfulness (see Matter of Rosa v Fischer, 112 AD3d 1009, 1011
[2013], lv denied 22 NY3d 864 [2014]; Matter of Torres v Fischer,
101 AD3d at 1282 [2012]).

      Here, the captain who prepared the misbehavior report
stated that an inmate he spoke with identified petitioner as the
individual who told other inmates in the mosque not to
participate in the ILC election process. He stated that another
inmate, who he apparently did not interview, gave a note to


    1
        The rehearing was apparently ordered because a
potentially relevant witness was denied at the initial tier III
disciplinary hearing.
                              -3-                516399

another correction official that similarly implicated petitioner.
The correction official who received the note testified that he
received several confidential letters from inmates indicating
that petitioner was a major participant in the scheme to force
inmates to boycott the ILC election process. He stated that he
personally interviewed three inmates and, without revealing their
identities to the Hearing Officer, related the information that
they disclosed to him.

      A number of deficiencies with the in camera interview lead
us to conclude that it did not provide an adequate basis for the
Hearing Officer to independently assess the credibility and
reliability of the confidential information. First, the captain
did not provide any testimony to establish whether the inmate he
interviewed had previously provided credible information to him
or other officials, and he admitted that he did not even know the
inmate who gave the note to the other correction official.
Similarly, the correction official who interviewed the three
unidentified inmates did not articulate the bases for finding
their statements to be believable. Significantly, none of the
letters or notes written by inmates allegedly implicating
petitioner were admitted into evidence (see Matter of Torres v
Fischer, 101 AD3d at 1282). Further, the statements of the
inmates interviewed by the two officials lacked adequate
specificity to establish petitioner's status as a leader of the
boycott, or his act of threatening violence (see Matter of Colon
v Goord, 23 AD3d at 934). Given these deficiencies, and as the
confidential information was instrumental to the finding of
guilt, we conclude that the determination is not supported by
substantial evidence and must be annulled (see Matter of Eugenio
v Fischer, 112 AD3d 1017, 1017-1018 [2013], lv denied 22 NY3d 863
[2014]; Matter of Rosa v Fischer, 112 AD3d at 1010-1011; Matter
of Daise v Giambruno, 279 AD2d 911, 911-912 [2001]; compare
Matter of Sheppard v Goord, 292 AD2d 694, 695 [2002]). In view
of our disposition, we need not address petitioner's remaining
claim.

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
                              -4-                  516399

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
