IN RE: Reynaldo AGOSTO

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

IN RE: Reynaldo AGOSTO, petitioner, v. Glenn GOORD, etc., respondent.

Decided: September 27, 1999

CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, HOWARD MILLER and NANCY E. SMITH, JJ. Daniel L. Greenberg, New York, N.Y. (Kenneth R. Stephens of counsel), for petitioner. Eliot L. Spitzer, Attorney-General, New York, N.Y. (Robert A. Forte and Thomas B. Litsky of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Correctional Services, dated May 23, 1997, made after a Tier III disciplinary hearing, as modified by a decision of the Director of the Special Housing/Inmate Disciplinary Program, dated August 5, 1997, finding that the petitioner had violated 7 NYCRR 270.2(B)(5)(iii), and imposing penalties.

ADJUDGED that the petition is granted, the determination, as modified, is annulled, without costs or disbursements, and the respondent is directed to expunge from the petitioner's institutional record all references to the charges underlying the determination.

The Commissioner's determination that the petitioner violated a prison disciplinary rule by instigating a work stoppage is not supported by substantial evidence.   As in Matter of Milland v. Goord, 264 A.D.2d 846, 698 N.Y.S.2d 245 [decided herewith], the in camera testimony of the correction officer who interviewed the confidential informants was not sufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility and the reliability of the informants (see also, Matter of Cotto v. Bautista, 252 A.D.2d 977, 676 N.Y.S.2d 373;  Matter of Martinez v. Goord, 248 A.D.2d 1001, 670 N.Y.S.2d 148;  Matter of Holmes v. Senkowski, 238 A.D.2d 629, 655 N.Y.S.2d 695;  cf., Matter of Valentin v. Goord, 259 A.D.2d 911, 687 N.Y.S.2d 208;  Matter of Medina v. Goord, 253 A.D.2d 973, 678 N.Y.S.2d 919).   Accordingly, the determination must be annulled.


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