Opinion
June 5, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
David Wanton, petitioner pro se. Robert Abrams, Attorney-General (Denise A. Hartman of counsel), for respondents.
Petitioner's arguments are limited to claims that he was denied due process by the manner in which the Superintendent's proceeding was conducted, but fundamental to our review is the requirement that the record contain substantial evidence to support the determination of respondent Commissioner of Correctional Services (see, Matter of Alvarado v. LeFevre, 111 A.D.2d 475, 476). We find such evidence lacking and, therefore, annul the determination.
The record contains a misbehavior report prepared and signed by Sergeant Charles Ripley, who arrived at the scene after the alleged assault had occurred. Ripley clearly had no firsthand knowledge of the facts and circumstances, for he stated in his report that "[a]ll this evidence was concluded by me, Sgt. Ripley, from an investigation". The report contains a reference to an event observed by Correction Officer C. La Croix, but La Croix did not sign or initial the report; nor did he testify at the hearing. In People ex rel. Vega v. Smith ( 66 N.Y.2d 130, 139-140), the court held that misbehavior reports can form sufficient bases to support prison disciplinary determinations, but each of the reports in Vega contained a detailed description of an incident which the author claimed to have witnessed and was indorsed or initialed by one or more other correction officers. The report herein falls far short of those in Vega in terms of relevance and probative value.
The record also contains an interdepartmental communication, labeled confidential, in which Ripley reported the results of his interview with a witness who incriminated petitioner. As in Matter of Alvarado v. LeFevre (supra), we see no reason why the hearing officer could not have personally interviewed the witness in camera rather than rely on the third-party assessment by Ripley, whose report is itself hearsay (cf. Matter of Hickman v. Coughlin, 115 A.D.2d 105).
It appears that the determination was also based in part upon certain physical evidence, i.e., a knife and a bloody sweatshirt, but these items do not connect petitioner to the assault. It is our view, therefore, that the evidence relied upon by the Commissioner is so lacking in relevance and probative value that no reasonable mind would accept it as adequate to support a conclusion or ultimate fact (cf. 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180).
KANE, J.P., MIKOLL and LEVINE, JJ., concur.
Determination annulled, without costs, petition granted, and respondents are directed to expunge all references to this proceeding from petitioner's files and to restore any good time taken from petitioner as a result thereof.