                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520265
________________________________

In the Matter of SPENCER
   BRIDGE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 22, 2015

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

                             __________


      Alissa R. Hull, Prisoners' Legal Services of New York,
Plattsburgh, for petitioner.

      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 finding petitioner guilty of
violating certain prison disciplinary rules.

      Following an investigation into an inmate being assaulted
from behind, petitioner was charged in a misbehavior report with
assault on an inmate, violent conduct, possession of a weapon and
creating a disturbance. Petitioner was found guilty of all
charges at the conclusion of a tier III disciplinary hearing.
The determination was modified on administrative appeal by
dismissing the charge of creating a disturbance but was otherwise
affirmed. This CPLR article 78 proceeding ensued.
                              -2-                520265

      Petitioner contends that the determination is not supported
by substantial evidence because the Hearing Officer did not
independently assess the reliability of the confidential
information. Upon our review of the record, we agree. "A
disciplinary determination may be based upon hearsay confidential
information provided that it is sufficiently detailed and
probative for the Hearing Officer to make an independent
assessment of the informant's reliability" (Matter of Muller v
Fischer, 125 AD3d 1034, 1035 [2015] [citations omitted]). Here,
the correction officer who investigated the incident and authored
the misbehavior report testified that his information regarding
petitioner's involvement was gleaned from confidential
informants. Other than noting that the confidential informants
either had proven reliable in the past or disclosed detailed
information about the incident, the correction officer did not
testify with any further specificity or detail regarding the
substance of the information that was provided in order for the
Hearing Officer to independently assess the informants'
reliability or credibility. Given that the confidential
information was instrumental in finding petitioner guilty of the
charges, we find that substantial evidence does not support the
determination and it, therefore, must be annulled (see Matter of
Muller v Fischer, 125 AD3d at 1035; Matter of Rosa v Fischer, 112
AD3d 1009, 1011 [2013], lv denied 22 NY3d 864 [2014]).

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
                              -3-                  520265

      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 to restore any good time lost as a result thereof.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
