Opinion
December 3, 1992
Appeal from the Supreme Court, Ulster County.
Petitioner was found guilty, after administrative review, of violating disciplinary rules prohibiting solicitation and conspiracy to possess a controlled substance. During the course of the disciplinary hearing, an investigator for the Inspector General's office testified that investigators had recorded conversations between a Department of Correctional Services employee and a civilian in which the employee offered to smuggle an amount of marihuana to an inmate for $100 and arranged to meet the civilian at a specific place and time to complete the exchange. The investigator also testified that surveillance revealed that the exchange took place and that the employee was to deliver the marihuana to an inmate in petitioner's facility, at which point the employee was arrested and made a statement. According to the investigator, the employee's statement indicated that petitioner, who worked with the employee, had solicited him to call the civilian and smuggle the marihuana, giving the employee a piece of paper with phone numbers on it to arrange the exchange, which paper was found in the employee's possession. In addition, petitioner admitted that he worked with the employee.
Contrary to petitioner's assertions, hearsay misbehavior reports may constitute substantial evidence of an inmate's misconduct provided the evidence is sufficiently relevant and probative (Matter of Foster v Coughlin, 76 N.Y.2d 964, 966; People ex rel. Vega v Smith, 66 N.Y.2d 130, 139). Here, the investigator who prepared the misbehavior report testified regarding his conversation with the employee and this testimony, coupled with the information contained in the misbehavior report, was sufficiently detailed as to time, place and the persons involved in the incident to satisfy the substantial evidence requirement (see, Matter of Colon v Coughlin, 147 A.D.2d 802; see also, Matter of Palacio v State of New York Dept. of Correctional Servs., 182 A.D.2d 900). Finally, petitioner's reliance upon cases involving confidential informants is misplaced. The employee and one of the other inmates allegedly involved in the incident were identified at the hearing and petitioner did not formally request that the Hearing Officer call these individuals to testify (see, Matter of Colon v Coughlin, supra, at 803-804).
Mikoll, J.P., Yesawich Jr., Mahoney and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.