| Matter of Tolliver v Fischer |
| 2009 NY Slip Op 09239 [68 AD3d 884] |
| December 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Eric Tolliver, Petitioner, v Brian Fischer,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and DavidLawrence III of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of Brian Fischer, theSuperintendent of the Green Haven Correctional Facility dated June 11, 2008, which confirmed adetermination of a hearing officer dated April 8, 2008, made after a Tier III disciplinary hearing,finding the petitioner guilty of violating prison disciplinary rules 113.25, 114.10, and 121.11 (7NYCRR 270.2 [B] [14] [xv]; [15] [i]; [22] [ii]), and imposing penalties.
Adjudged that the petition is granted, without costs or disbursements, to the extent that thedetermination is annulled and the matter is remitted to the respondent for a new hearing and anew determination thereafter in accordance herewith, the petition is otherwise denied, and theproceeding is otherwise dismissed.
On March 3, 2008, the petitioner was charged with violating prison disciplinary rules 113.25(7 NYCRR 270.2 [B] [14] [xv]), and 114.10 (7 NYCRR 270.2 [B] [15] [i]), which prohibit,among other things, conspiring to introduce controlled substances into a correctional facility andsmuggling, respectively. The petitioner also was charged with violating prison disciplinary rule121.11 (7 NYCRR 270.2 [B] [22] [ii]), which prohibits inmates from engaging in third-partytelephone calls. The misbehavior report alleged that, on January 3, 2008, and on subsequentadditional dates, the petitioner "did conspire with several visitors to smuggle quantities of heroinand marijuana" into the Green Haven Correctional Facility. The misbehavior report stated that,to further the conspiracy, the petitioner used "the inmate phone system violating D[epartment]O[f] C[orrectional] S[ervices] Directive #4423. The foregoing is the result of a confidentialinvestigation being conducted by the New York State Department of Correctional Services,Inspector General's Office, Narcotic[s] Unit."
Following a tier III disciplinary hearing, the petitioner was found guilty of violating theaforementioned disciplinary rules. Upon the petitioner's administrative appeal of the hearingofficer's determination, Brian Fischer, the Superintendent of the Green Haven CorrectionalFacility (hereinafter the Superintendent) confirmed the determination.
The petitioner then commenced the instant proceeding pursuant to CPLR article 78 in the[*2]Supreme Court, Dutchess County, to challenge theSuperintendent's determination. In an order dated November 17, 2008, the Supreme Courttransferred the proceeding to this Court pursuant to CPLR 7804 (g). Although the SupremeCourt should have disposed of the proceeding by addressing the petitioner's argument that thedetermination was affected by an error of law, specifically, that it was rendered in violation ofdue process requirements (see CPLR 7804 [g]; Matter of Tartaglione v Board ofCommrs. of Police Dept. of Vil. of Briarcliff Manor, 301 AD2d 655, 657 [2003]), since thefull record is now before us, we will decide the proceeding on the merits in the interest ofjudicial economy (see Matter ofHalperin v City of New Rochelle, 24 AD3d 768, 772-773 [2005]).
During the hearing, the hearing officer considered the testimony of, inter alia, a seniornarcotics investigative officer employed by the Department of Correctional Services. Theinvestigator produced several recordings of the petitioner's telephone conversations, wherein thepetitioner allegedly used the prison telephones to coordinate the smuggling of heroin andmarijuana into the facility. The telephone recordings were provided to the petitioner during thehearing. The investigator testified that the petitioner used coded language to refer to drugs duringthe recorded conversations. The hearing officer indicated that, while he did not understand muchof recorded conversations, the investigator provided him with a "confidential . . .explanation" of the recordings. According to the investigator, the explanation was written by aunnamed third party. The petitioner requested a copy of the explanation, but the hearing officerdeclined the request.
Where, as here, an inmate is charged with violation of a prison regulation which could resultin the loss of good-time credit, he or she is entitled to minimum due process protections (see Matter of Stallone v Fischer, 67AD3d 125, 128 [2009]). The hearing officer did not provide the petitioner with the so-calledconfidential explanation of the telephone recordings, and failed to state a reason why thatexplanation could not be given to the petitioner. Since the explanation of the recordings wasrelevant to the petitioner's contention that the recordings did not demonstrate that he wasinvolved in any drug-related activity, we annul the determination and remit the matter to therespondent for further proceedings (cf.Matter of Roach v Goord, 46 AD3d 988, 989 [2007]; Matter of Perkins vGoord, 257 AD2d 821, 822 [1999]). Upon remittal, the hearing officer shall conduct a newhearing, and either produce the so-called confidential explanation for the petitioner's use at thenew hearing and render a new determination thereafter or, if the hearing officer deems theso-called confidential explanation to be too sensitive to reveal, render a new determination afterthe new hearing without consideration of or reference to the so-called confidential explanation.
In light of our determination, we need not consider the petitioner's remaining contentions.Skelos, J.P., Eng, Leventhal and Chambers, JJ., concur.