State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519358 

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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
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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.
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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