State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 4, 2014 516399 

________________________________

In the Matter of JOSEPH MULLER,

Petitioner,

v MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner 

of Corrections and Community

Supervision,

Respondent.

________________________________

Calendar Date: August 21, 2014

Before: McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

__________

Matthew P. McGowan, Prisoners' Legal Services of New York,

Albany, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Martin A.

Hotvet of counsel), for respondent.

__________

Garry, J.

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, correction officials

obtained confidential information that petitioner used threats

and intimidation to pressure other inmates to refrain from

participating in the process to elect members of the inmate

liaison committee (hereinafter ILC). As a result, he was charged

in a misbehavior report with engaging in conduct involving the

threat of violence (rule 104.11) and organizing inmates to engage
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in actions detrimental to the facility (rule 104.12). During a

rehearing on these disciplinary charges,1 various witnesses

testified on behalf of petitioner, and the Hearing Officer also

received confidential information through his in camera interview

with two correction officials involved in the investigation. The

Hearing Officer relied heavily upon this confidential information

in finding petitioner guilty of the charges. The determination

of guilt was later affirmed on administrative appeal with a

modified penalty. Petitioner then commenced this CPLR article 78

proceeding. 

Petitioner contends that the determination is not supported

by substantial evidence. "While hearsay evidence in the form of

confidential information may provide substantial evidence to

support a determination of guilt, the information must be

sufficiently detailed to allow the Hearing Officer to make an

independent assessment to determine its reliability and

credibility" (Matter of Torres v Fischer, 101 AD3d 1281, 1282

[2012] [citations omitted]; see Matter of Colon v Goord, 23 AD3d

933, 934 [2005]). Notably, where the Hearing Officer obtains

such information through the testimony of a correction officer

who has interviewed a confidential informant, the questioning

must be thorough and specific, to allow an adequate basis to

gauge the informant's knowledge and reliability (see Matter of

Williams v Fischer, 18 NY3d 888, 890 [2012]). The Hearing

Officer may not base his or her conclusion solely upon the

correction officer's assessment of the confidential informant's

truthfulness (see Matter of Rosa v Fischer, 112 AD3d 1009, 1011

[2013], lv denied 22 NY3d 864 [2014]; Matter of Torres v Fischer,

101 AD3d at 1282 [2012]).

Here, the captain who prepared the misbehavior report

stated that an inmate he spoke with identified petitioner as the

individual who told other inmates in the mosque not to

participate in the ILC election process. He stated that another

inmate, who he apparently did not interview, gave a note to

1 The rehearing was apparently ordered because a

potentially relevant witness was denied at the initial tier III

disciplinary hearing. 
-3- 516399 

another correction official that similarly implicated petitioner. 

The correction official who received the note testified that he

received several confidential letters from inmates indicating

that petitioner was a major participant in the scheme to force

inmates to boycott the ILC election process. He stated that he

personally interviewed three inmates and, without revealing their

identities to the Hearing Officer, related the information that

they disclosed to him. 

A number of deficiencies with the in camera interview lead

us to conclude that it did not provide an adequate basis for the

Hearing Officer to independently assess the credibility and

reliability of the confidential information. First, the captain

did not provide any testimony to establish whether the inmate he

interviewed had previously provided credible information to him

or other officials, and he admitted that he did not even know the

inmate who gave the note to the other correction official. 

Similarly, the correction official who interviewed the three

unidentified inmates did not articulate the bases for finding

their statements to be believable. Significantly, none of the

letters or notes written by inmates allegedly implicating

petitioner were admitted into evidence (see Matter of Torres v

Fischer, 101 AD3d at 1282). Further, the statements of the

inmates interviewed by the two officials lacked adequate

specificity to establish petitioner's status as a leader of the

boycott, or his act of threatening violence (see Matter of Colon

v Goord, 23 AD3d at 934). Given these deficiencies, and as the

confidential information was instrumental to the finding of

guilt, we conclude that the determination is not supported by

substantial evidence and must be annulled (see Matter of Eugenio

v Fischer, 112 AD3d 1017, 1017-1018 [2013], lv denied 22 NY3d 863

[2014]; Matter of Rosa v Fischer, 112 AD3d at 1010-1011; Matter

of Daise v Giambruno, 279 AD2d 911, 911-912 [2001]; compare

Matter of Sheppard v Goord, 292 AD2d 694, 695 [2002]). In view

of our disposition, we need not address petitioner's remaining

claim.

McCarthy, J.P., Egan Jr., Lynch 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 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