IN RE: Steven CHRISTIAN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Steven CHRISTIAN, Petitioner, v. Glenn GOORD, as Commissioner of the Department of Correctional Services, Respondent.

Decided: January 29, 1998

Before MIKOLL, J.P., and CREW, WHITE, PETERS and CARPINELLO, JJ. Steven Christian, Auburn, in person. Dennis C. Vacco, Attorney General (Robert M. Goldfarb, of counsel), Albany, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

While an inmate at Clinton Correctional Facility in Clinton County, petitioner was charged with and found guilty of assaulting an inmate and possessing a weapon and a penalty was imposed.   Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 contending, inter alia, that the underlying determination is not supported by substantial evidence.   We agree.   Respondent's determination primarily rests upon information provided by confidential informants.   Assuming, without deciding, that there was a sufficient basis to permit the Hearing Officer to make an independent assessment of the informants' credibility and reliability, the vague and conclusory information provided by them simply did not constitute “the type of relevant proof that a reasonable mind would accept as adequate to support the determination at issue” (Matter of Lopez v. Coombe, 229 A.D.2d 639, 645 N.Y.S.2d 136;  see, Matter of Gomez v. Coughlin, 227 A.D.2d 882, 644 N.Y.S.2d 63).   Nor may the misbehavior report provide support for respondent's determination, as it too was based upon the information supplied by the confidential informants.   Moreover, although petitioner admitted being in the vicinity of the assault, none of the witnesses who testified at the tier III hearing, including the victim, identified petitioner as one of the assailants.   Accordingly, we have little choice but to conclude that the determination is not supported by substantial evidence in the record as a whole and, as such, it must be annulled.   Finally, as it appears that petitioner has served his administrative penalty, the appropriate remedy is expungement.

ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this matter from petitioner's institutional record.

CREW, Justice.

MIKOLL, J.P., and WHITE, PETERS and CARPINELLO, JJ., concur.

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