State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 5, 2015 519099 

________________________________

In the Matter of ANDREW MULLER, 

Petitioner, 

v MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner 

of Corrections and Community 

Supervision, 

Respondent.

________________________________

Calendar Date: December 2, 2014

Before: Peters, P.J., Lahtinen, Lynch and Devine, JJ.

__________

Andrew Muller, Romulus, 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 found petitioner

guilty of violating certain prison disciplinary rules.

After a discarded tissue containing 18.4 grams of marihuana

was discovered under a vending machine in the visiting room area,

petitioner was charged in a misbehavior report with conspiring to

introduce drugs into the correctional facility, smuggling and

violating visiting room procedures. According to the misbehavior

report, the drugs were linked to petitioner as the result of an

on-going investigation based upon confidential information. 

Following a tier III disciplinary hearing, petitioner was found

guilty of all charges. That determination was confirmed upon

administrative appeal, prompting petitioner to commence this CPLR
-2- 519099 

article 78 proceeding. 

Upon review of the confidential information, we agree with

petitioner's contention that the Hearing Officer did not

independently assess the reliability and credibility of the

confidential information. 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

(see Matter of Rosa v Fischer, 112 AD3d 1009, 1010 [2013], lv

denied 22 NY3d 864 [2014]; Matter of Debose v Selsky, 12 AD3d

1003, 1004 [2004]). Here, a review of the confidential

information reveals that, other than a general statement of

petitioner's involvement, there was a lack of adequate

specificity and detail to establish the basis of petitioner's

connection to or participation in the drug smuggling incident in

the visiting room. Although the correction officer testified as

to the confidential informant's reliability, the testimony was

insufficiently detailed for the Hearing Officer to independently

assess the reliability and credibility of the confidential

information. Because the confidential information was

instrumental in finding petitioner guilty of the charges, we find

that the determination is not supported by substantial evidence

and it, therefore, must be annulled (see Matter of Muller v

Fischer, 120 AD3d 1452, 1454 [2014]; Matter of Rosa v Fischer,

112 AD3d at 1011; Matter of Palermo v Fischer, 110 AD3d 1293,

1293-1294 [2013]; Matter of Torres v Fischer, 101 AD3d 1281, 1282

[2012]).

Peters, P.J., Lahtinen, Lynch and Devine, JJ., concur.
-3- 519099 

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 restore any loss of good time taken as a result thereof.

ENTER:

Robert D. Mayberger

Clerk of the Court