Opinion
02-02-2017
In the Matter of Daniel PAGAN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Daniel Pagan, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Patrick A. Woods of counsel), for respondent.
Daniel Pagan, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Patrick A. Woods 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 finding petitioner guilty of violating a prison disciplinary rule.
During the course of an investigation, correction officials received confidential information revealing that petitioner and two other inmates were planning to escape from the correctional facility. As a result, petitioner was charged in a misbehavior report with conspiracy to escape. He was found guilty of the charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony of correction officials involved in the investigation and confidential testimony and documentation considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Sullivan v. Fischer, 95 A.D.3d 1514, 1515, 944 N.Y.S.2d 677 [2012] ). Contrary to petitioner's claim, the Hearing Officer conducted a sufficient independent assessment of the confidential information to determine its credibility and reliability. In this regard, the Hearing Officer personally interviewed correction officials involved in the investigation, who disclosed details that corroborated petitioner's involvement and the informant's past reliability, and also reviewed the incriminating confidential documents (see Matter of Al–Matin v. Prack, 131 A.D.3d 1293, 1293, 16 N.Y.S.3d 96 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 8805369 [2015] ; see also Matter of Pompey v. Prack, 128 A.D.3d 1251, 1251, 8 N.Y.S.3d 499 [2015] ). We note that, in view of the sensitive nature of the confidential information at issue here, petitioner was not entitled to its disclosure (see Matter of McDuffy v. Fischer, 107 A.D.3d 1190, 1190, 966 N.Y.S.2d 701 [2013] ; Matter of Sanders v. Haggett, 72 A.D.3d 1372, 1373, 901 N.Y.S.2d 725 [2010] ). Furthermore, given that the misbehavior report was prepared as the result of an ongoing investigation during which confidential information was received, we find that it contained adequate information to enable petitioner to prepare a defense (see Matter of Topsy v. Venettozzi, 98 A.D.3d 520, 521, 949 N.Y.S.2d 197 [2012], lv. denied 20 N.Y.3d 852, 2012 WL 5907248 [2012] ; Matter of Fareedullah v. Fischer, 64 A.D.3d 1024, 1025, 882 N.Y.S.2d 756 [2009], lv. denied 13 N.Y.3d 713, 2009 WL 4795109 [2009] ), which he presented at the hearing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., EGAN JR., LYNCH, DEVINE and MULVEY, JJ., concur.