## State of N ew York Su p reme Cou rt, A p p ellate Division Third J u dicial Dep artment Decided and Entered: April 9, 2015 519358

________________________________ 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-2- 519358

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.-3- 519358

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