                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     519894
________________________________

In the Matter of MATTHEW
   COOPER,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   McCarthy, J.P., Garry, Devine and Clark, 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 which found petitioner
guilty of violating certain prison disciplinary rules.

      During the course of an investigation, a correction
sergeant received confidential information identifying petitioner
as one of the inmates involved in an attack upon another inmate.
As a result, she prepared a misbehavior report charging
petitioner with engaging in violent conduct and assaulting an
inmate. Following a tier III disciplinary hearing, petitioner
was found guilty of the charges and the determination was later
                                 -2-                519894

affirmed on administrative appeal.1    This CPLR article 78
proceeding ensued.

       Initially, we note that confidential information may
provide substantial evidence supporting a prison disciplinary
determination as long as it is sufficiently detailed and
probative that the Hearing Officer may make an independent
assessment of the reliability of the information (see Matter of
Muller v Fischer, 125 AD3d 1034, 1035 [2015]; Matter of Rosa v
Fischer, 112 AD3d 1009, 1010 [2013], lv denied 22 NY3d 864
[2014]). Petitioner contends that the Hearing Officer failed to
independently assess the reliability of the confidential
information considered here. Based upon our review of the
record, we must agree. The misbehavior report was the primary
evidence supporting the disciplinary determination, as the
sergeant who prepared it did not testify at the hearing.2 The
sergeant based the report upon confidential memoranda that she
prepared after obtaining incriminating information directly from
the confidential source. The memoranda, however, do not contain
additional information or corroborating details to facilitate
verification of the source's reliability (see Matter of Stone v
Bezio, 69 AD3d 1280, 1280-1281 [2010]; Matter of Daise v
Giambruno, 279 AD2d 911, 911-912 [2001]). Moreover, the Hearing
Officer did not personally interview either the source or the
sergeant who obtained the information. In view of this, we agree
with petitioner that the necessary independent assessment of the
confidential information was lacking and that the determination
must be annulled and all references thereto expunged from
petitioner's institutional record (see Matter of Muller v
Fischer, 125 AD3d at 1035; Matter of Stone v Bezio, 60 AD3d at
1281; compare Matter of Catlin v Gouverneur Correctional
Facility, 38 AD3d 1025, 1026 [2007]).


     1
          The penalty was subsequently modified upon discretionary
review.
     2
        Although the Hearing Officer also appears to have relied
upon handwritten notes purportedly written by petitioner that
were found in the victim's cell, no evidence was presented that
these notes were, in fact, written by petitioner.
                              -3-                  519894

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.



      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 taken as a result thereof.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
