Hearsay Deemed Insufficient to Support Determination

The Third Department annulled the disciplinary determination because the hearsay information upon which it was based was deemed insufficient:

“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” … . 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 … . The Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness … .

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 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 … . 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 … . 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 … . Matter of Muller v Fischer, 2014 NY Slip Op 06024, 3rd Dept 9-4-14