                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519358
________________________________

In the Matter of GEORGE
   MELENDEZ,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
COMMISSIONER OF THE DEPARTMENT
   OF CORRECTIONS AND COMMUNITY
   SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   February 24, 2015

Before:   McCarthy, J.P., Garry, Devine and Clark, JJ.

                             __________


     George Melendez, Pine City, 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 Albany County) to
review a determination of respondent which placed petitioner in
involuntary protective custody.

      Correction officials received confidential information
that, due to the fact that the victim of petitioner's crime was
either a member of the Bloods gang or a friend or relative of
such individual, petitioner's life was in danger if he remained
in the general population of the correctional facility. After
petitioner refused protective custody, a recommendation was made
to place him in involuntary protective custody (hereinafter IPC).
A hearing on the matter was conducted after which a determination
was issued affirming the recommendation. The determination was
                              -2-                519358

later upheld on administrative appeal and petitioner commenced
this CPLR article 78 proceeding challenging it.

      Initially, although petitioner has been removed from IPC
and transferred to another correctional facility, his challenge
to respondent's determination is not moot inasmuch as he also
seeks to have it expunged from his institutional record (see
Matter of Hynes v Fischer, 101 AD3d 1188, 1189 [2012]; Matter of
Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]). Turning to the
merits, we agree with petitioner that the Hearing Officer did not
conduct the necessary independent assessment of the reliability
of the confidential information that provided the basis for the
IPC recommendation. Although the Hearing Officer took testimony
from the captain who obtained the confidential information and
issued the IPC recommendation, the Hearing Officer did not
conduct an in camera interview of the captain to ascertain
further details of his investigation, nor did he review any notes
or letters that the captain may have received that threatened
petitioner's life (compare Matter of Lane v Kirkpatrick, 68 AD3d
1280, 1281 [2009]; Matter of Franklin v Hoke, 174 AD2d 908, 908
[1991]). Notably, the captain acknowledged that the confidential
source who initially disclosed the threat would not identify the
inmate who made it. Indeed, the only confirmation of this
source's reliability was the captain's conclusory statement that
he believed this individual was reliable based upon past
dealings. Under the circumstances presented, we find that this
was insufficient and that substantial evidence does not support
the determination placing petitioner in IPC (see Matter of Hynes
v Fischer, 101 AD3d at 1189-1190; Matter of Kalonji v Coughlin,
157 AD2d 941, 942-943 [1990]). In view of our disposition, we
need not address petitioner's remaining claims.

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.
                              -3-                  519358

      ADJUDGED that the determination is annulled, without costs,
petition granted and respondent is directed to expunge all
references thereto from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
