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HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEP

The Third Department, annulling the disciplinary determination and expunging it, determined the hearsay upon which the determination was based was not demonstrated to be sufficiently reliable:

“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” … . The only witness called to testify at the hearing was the lieutenant who oversaw the investigation. The lieutenant relied upon information provided by other officers, who reported receiving information from unspecified informants that petitioner was involved in this fight. During his confidential and hearing testimony, the lieutenant recounted that the officers informed him that they had received information from informants, whom they had used in the past and found reliable, that petitioner had engaged in this fight. The lieutenant deemed the reports to be “consistent” and “credible,” but provided no details of their accounts. Moreover, the lieutenant had not interviewed any of the informants and did not know if any of them had actually witnessed the fight. The questioning of the lieutenant about the officers’ and informants’ accounts was cursory, rather than “thorough and specific” as required to provide the Hearing Officer with a basis to gauge the informants’ “knowledge and reliability” … .

While the lieutenant relied upon a to/from memorandum from the sergeant who apparently interviewed some of the informants, that memorandum contains no details regarding the basis for their knowledge or any specificity about their accounts, and does not assert that they had witnessed the fight or any information regarding their past reliability. Under these circumstances, the record is devoid of any basis upon which to conclude that the informants ever provided “detailed and specific” accounts, or that the Hearing Officer had information from which to “gauge the basis for the informant[s’] knowledge of the [fight] and [their] reliability” … . Matter of Maisonett v Venettozzi, 2018 NY Slip Op 05257, Third Dept 7-12-18

DISCIPLINARY HEARINGS (INMATES) (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES)  (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/HEARSAY (DISCIPLINARY HEARINGS (INMATES)  (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))

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