IN RE: Christopher ELLISON

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IN RE: Christopher ELLISON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Decided: September 22, 2016

Before: PETERS, P.J., GARRY, LYNCH, DEVINE and MULVEY, JJ. Christopher Ellison, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.

Combined proceeding pursuant to CPLR article 78 and action for declaratory judgment (transferred to this Court by order of the Supreme Court, entered in Chemung County) to, among other things, review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Based upon information from a confidential source, petitioner was charged in a misbehavior report with assault on an inmate and possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. The determination was subsequently reversed upon administrative appeal and a rehearing was ordered. Following the rehearing, petitioner again was found guilty as charged. That determination was affirmed upon administrative appeal. Petitioner commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking to vacate the determination and a declaration that there is no regulatory requirement that a prisoner at a disciplinary hearing need to impose an objection in order to preserve his or her challenges for administrative or judicial review. Supreme Court thereafter transferred the matter to this Court.

The misbehavior report, testimony at the hearing and confidential information provide substantial evidence to support the determination of guilt (see Matter of Davis v. Annucci, 137 AD3d 1437, 1438 [2016]; Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270 [2014] ). Contrary to petitioner's contention, we find that the Hearing Officer's interview with the author of the misbehavior report and review of the information from the confidential source was sufficiently detailed with regard to the attack to allow the Hearing Officer to independently assess the credibility and reliability of the confidential information (see Matter of Davis v. Annucci, 137 AD3d at 1438; Matter of Al–Matin v. Prack, 131 A.D.3d 1293, 1293 [2015], lv denied 26 N.Y.3d 913 [2015]; Matter of Spencer v. Annucci, 122 A.D.3d 1043, 1044 [2014] ).

Nevertheless, respondent concedes, and our review of the record confirms, that the Hearing Officer improperly denied petitioner's request to call relevant witnesses, including the correction officers present at the time of the alleged incident. As the record reflects that the Hearing Officer gave a good-faith basis for the denial of the witnesses, this amounts to a regulatory violation such that the proper remedy is to remit the matter for a new hearing (see Matter of Griffin v. Prack, 110 A.D.3d 1287, 1287 [2013]; Matter of Moulton v. Fischer, 100 A.D.3d 1131, 1131–1132 [2012], lv dismissed 20 N.Y.3d 1021 [2013] ). In view of the foregoing, the remaining issues raised by petitioner in the CPLR article 78 proceeding need not be addressed.

To the extent that petitioner requests declaratory relief, such relief is not authorized in a transferred proceeding pursuant to CPLR 7804(g), and that part of the matter must therefore be remitted to Supreme Court for further proceedings and for the entry of an appropriate judgment thereon (see Matter of Watson v. New York State Dept. of Corr. & Community Supervision, 108 A.D.3d 817, 818 [2013], lv dismissed 22 N.Y.3d 914 [2013], lv denied 23 N.Y.3d 902 [2014]; Nunez v. LaValley, 95 A.D.3d 1583, 1584 [2012] ).

ADJUDGED that (1) the action for declaratory judgment is severed and said matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision, and (2) the determination is annulled, without costs, and the CPLR article 78 proceeding remitted to respondent for further proceedings not inconsistent with this Court's decision.

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