Aponte v. Coughlin

—Determination unanimously annulled on the law and petition granted in accordance with the following Memorandum: On January 7, 1993, three correction officers were assaulted by inmates in the recreational bubble at the Wyoming Correctional Facility. After a Tier III disciplinary hearing, petitioner was found guilty of violating inmate rules against engaging in violent conduct and conduct that disturbs the order of the facility. A third charge was dismissed upon petitioner’s administrative appeal. The evidence relied upon to support the finding of guilt was the written misbehavior report and the testimony of the author of the report and another correction officer. Apart from petitioner, no one with firsthand knowledge of the incident testified at the hearing. The correction officers testified that confidential informants who witnessed the incident had identified petitioner as one of the inmates who participated in the assaults. We conclude that the determination is not supported by substantial evidence. The misbehavior report and the testimony of its author "did not merely constitute a hearsay account of the incident, but recited hearsay or double hearsay accounts” (Matter of Carter v Kelly, 159 AD2d 1006, 1007; see also, Matter of Gaston v Coughlin, 182 AD2d 1085; Matter of Leach v Coughlin, 179 AD2d 1050, 1051). Further, the testimony of the correction officers did not provide a sufficient basis to enable the Hearing Officer to make an independent assessment of the credibility of the informants and the reliability of their information (see, Matter of Gaston v Coughlin, supra; Matter of Leach v Coughlin, supra; Matter of Franklin v Hoke, 174 AD2d 908). Thus, the determination must be annulled and all references to the charges expunged from petitioner’s files. (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present— Green, J. P., Pine, Balio, Fallon and Doerr, JJ.