                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522721
________________________________

In the Matter of RAFAEL
   BELLIARD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS,
                    Respondent.
________________________________


Calendar Date:   September 20, 2016

Before:   Egan Jr., J.P., Devine, Clark, Mulvey and Aarons, JJ.

                             __________


     Rafael Belliard, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      After a window was broken in the prison day room, a
correction sergeant undertook an investigation to determine how
this occurred. The sergeant obtained confidential information
indicating that petitioner broke the window because he was upset
about not being able to watch a particular television show. When
the sergeant confronted petitioner, he denied that he broke the
window. As a result, petitioner was charged in a misbehavior
report with destroying state property, engaging in violent
conduct and making a false statement. He was found guilty of the
                              -2-                522721

charges following a tier III disciplinary hearing and the
determination was later affirmed on administrative appeal with a
modified penalty. This CPLR article 78 proceeding ensued.

      Petitioner contends, among other things, that the
determination is not supported by substantial evidence. Notably,
the charges of which petitioner was found guilty were based upon
information provided by confidential sources implicating
petitioner as the individual who broke the window. "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 Haigler
v Fischer, 119 AD3d 1261, 1262 [2014], lv denied 24 NY3d 908
[2014]; Matter of Rosa v Fischer, 112 AD3d 1009, 1010 [2013], lv
denied 22 NY3d 864 [2014]). Furthermore, "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" (Matter of Muller v Fischer, 120 AD3d 1452, 1453
[2014]; see Matter of Williams v Fischer, 18 NY3d 888, 890
[2012]).

      Here, the confidential information considered by the
Hearing Officer consisted of, among other things, memoranda
prepared by correction officials that briefly summarized their
interviews with three confidential sources who stated, in
conclusory fashion, that petitioner was the individual who broke
the window. In addition, a memorandum and photo array
identification were provided by one of the confidential sources,
but were similarly lacking in detail. The Hearing Officer also
considered the confidential testimony of the two correction
officials who spoke directly with the confidential sources. The
officials related that the sources identified petitioner as the
individual who broke the window, but did not reveal any specific
information regarding the basis of their knowledge.
Significantly, there is no indication that the sources actually
witnessed petitioner break the window nor any explanation as to
                              -3-                  522721

how they acquired this information. In addition, the correction
officials who interviewed them did not provide any endorsement of
their reliability other than to state that they freely provided
the information and were not coerced. Under these circumstances,
we conclude that the Hearing Officer failed to undertake the
requisite independent assessment of the confidential information
to establish its reliability (see Matter of Muller v Fischer, 120
AD3d at 1453-1454; Matter of Eugenio v Fischer, 112 AD3d 1017,
1017 [2013], lv denied 22 NY3d 863 [2014]). Inasmuch as this
information was instrumental in finding petitioner guilty of the
charges at issue, the determination is not supported by
substantial evidence and must annulled. In view of our
disposition, we need not address petitioner's remaining claims.

      Egan Jr., J.P., Devine, Clark, Mulvey and Aarons, JJ.,
concur.



      ADJUDGED that the determination is annulled, without costs,
petition granted, and the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this matter from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
