Greene v. Coughlin

196 A.D.2d 923, 602 N.Y.S.2d 232, 1993 N.Y. App. Div. LEXIS 8706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1993
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty after a Superintendent’s hearing of violating certain prison disciplinary rules prohibiting violation of the Penal Law, solicitation of goods or services without consent and lying. Petitioner contends that the determination is not supported by substantial evidence and that he was given insufficient notice of the charges against him.

Initially, we find that the misbehavior report gave petitioner sufficient notice of the charges against him (see, Matter of Williams v Coughlin, 190 AD2d 883, lv denied 82 NY2d 651; Matter of Morales v Senkowski, 165 AD2d 393). We further find, however, that there was insufficient evidence to establish petitioner’s guilt. The evidence against petitioner centered upon information from a confidential informant who stated that petitioner had been part of a conspiracy to file fraudulent State and Federal income tax returns to collect undeserved refunds. A review of the confidential transcript of the Hearing Officer’s interview of the investigator who spoke with the informant reveals that the Hearing Officer failed to make an independent assessment of the informant’s reliability. While the investigator stated that the informant’s statements were supported by other information the investigator had received, this corroborating evidence was not before the Hearing Officer (see, Matter of Nelson v Coughlin, 148 AD2d 779). Further, the informant’s information was not sufficiently detailed to enable the Hearing Officer to independently assess it (see, supra). Because the only other evidence was not inculpatory, the determination is not supported by substantial evidence (see, Matter of Suvill v Coughlin, 160 AD2d 1160, revd on other grounds 77 NY2d 642; Matter of Nelson v Coughlin, supra; Matter of Wynter v Jones, 135 AD2d 1032).

Mikoll, J. P., Mercure, Cardona, Mahoney and Casey, 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 records and restore him to prehearing status.