Abdur-Raheem v. Mann

• Decision Date: 14 February 1995
• Docket Number: A,ABDUR-RAHEE
• Citation: 623 N.Y.S.2d 758,647 N.E.2d 1266,85 N.Y.2d 113
• Parties: , 647 N.E.2d 1266 In the Matter of Jehanppellant, v. Louis MANN, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 758

623 N.Y.S.2d 758

85 N.Y.2d 113, 647 N.E.2d 1266

In the Matter of Jehan ABDUR-RAHEEM, Appellant, v. Louis MANN, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.

Court of Appeals of New York.

Feb. 14, 1995.

[85 N.Y.2d 115] [647 N.E.2d 1268] Robert Selcov, Poughkeepsie, Deborah Schneer and David C. Leven for appellant.

[85 N.Y.2d 116] Dennis C. Vacco, Atty. Gen., Albany (Martin A. Hotvet, Jerry Boone and Peter H. Schiff, of counsel), for respondents.

OPINION OF THE COURT

TITONE, Judge.

Petitioner brought this CPLR article 78 proceeding to challenge a prison disciplinary determination that he was guilty of violating certain inmate rules. The evidence on which the determination was based consisted principally of information that had been provided to prison authorities by confidential informants. The primary issue in this appeal from the dismissal of petitioner's article 78 petition is whether the determination was supported by substantial evidence even though the Hearing Officer did not personally interview the informants. We hold that a personal meeting between the Hearing Officer and the confidential informants is not required and that the informants' hearsay statements can constitute "substantial evidence" as long as there are objective circumstances demonstrating the informants' reliability and, based on those circumstances, the Hearing Officer makes an independent finding that the informants' evidence is, in fact, reliable.

I.

The charges in this case originated in the murder of an inmate named Normaul Busjit. Following an in-house investigation, petitioner was charged in a misbehavior report with breaching inmate rules prohibiting assaults and violations of the Penal Law. The misbehavior report, which was prepared by Correction Lieutenant Annetts and served on petitioner on June 9, 1992, stated:

"Based on information provided by confidential sources, you * * * are hereby charged, in conspiracy with others, with the assault on inmate Normaul Busjit * * *, which occurred on May 4, 1992 in the facility gymnasium between the hours of 9:30 a.m. and 10:55 a.m., resulting in the death of Normaul Busjit."

A Tier III hearing was conducted between June 12 and June 15, 1992 (see, 7 NYCRR part 254). Petitioner denied the charges, stating that he knew nothing about the incident. Although he acknowledged having been in the gymnasium during the period in question, petitioner asserted that he had never entered the adjoining bathroom in which the homicide took place. Twelve inmates testified on petitioner's behalf, each stating that investigators had threatened hardships or promised special benefits in an effort to obtain cooperation. Two additional inmate witnesses whom petitioner had identified declined to testify after stating that they either did not want to get involved or did not have relevant knowledge about the incident. Petitioner also called Lieutenant Annetts, the investigating officer, and elicited that he had personally interviewed some but not all of the confidential informants. In the interests of security, however, the Hearing Officer imposed stringent restrictions on questions by petitioner that were designed to elicit the identity of the informants or the contents of their statements.

In addition to the live testimony, the Hearing Officer read into the record several memoranda regarding the incident, including a description of the discovery of Busjit's body in the gymnasium bathroom. The Hearing Officer also advised petitioner that there was a confidential tape and other restricted information, all of which would be reviewed before the determination was made. Petitioner's request for a redacted copy of the confidential information was rejected.

At the completion of the hearing, the Hearing Officer found petitioner guilty of the charges. In reaching his conclusion, the Hearing Officer stated: "It is my opinion that the confidential data presented to me was coherent, detailed, made sense, and is believeable [sic]. Thus, I relied on such confidential information." The Hearing Officer imposed a penalty of nine years in the Special Housing Unit and loss of privileges, and the disposition was administratively affirmed. The penalty was reduced, however, after a Grand Jury failed to indict petitioner for second degree murder.

Petitioner brought the present article 78 proceeding to challenge the determination, raising several of the arguments he had previously made before the Hearing Officer. Among these arguments was the contention that the finding of guilt was defective because the Hearing Officer had not personally interviewed the confidential informants on whose statements he relied, and, consequently, he could not have independently assessed their credibility.

The Appellate Division rebuffed petitioner's argument, stressing that there are several acceptable methods for evaluating an informant's credibility other than conducting a personal interview and that there were sufficient objective indicia of reliability here. Rejecting petitioner's additional claims of procedural error, the Court confirmed respondents' determination and dismissed the petition, 200 A.D.2d 918, 607 N.Y.S.2d 439. Having subsequently granted petitioner leave to appeal, we now affirm.

II.

It is beyond question that prison disciplinary determinations may be predicated on evidence other than live testimony and that, in fact, determinations based only on hearsay evidence such as misbehavior reports are permissible, assuming that the evidence is sufficiently reliable (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332, 485 N.E.2d 997). Further, it has been held that confidential information may be considered even though the inmate has not been permitted access to it (Matter of Vogelsang v. Coombe, 66 N.Y.2d 835, 498 N.Y.S.2d 364, 489 N.E.2d 251, affg. 105 A.D.2d 913, 482 N.Y.S.2d 348). These tenets are consistent with the underlying premise that an inmate does not have a constitutional right to cross-examine adverse witnesses at a disciplinary hearing (see, Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 551 N.Y.S.2d 184, 550 N.E.2d 437).

Petitioner does not dispute the foregoing principles, nor does he contend that a determination based primarily on information from a confidential source is invalid. Instead, his argument is that where confidential information is relied upon, the Hearing Officer must personally interview the informants to determine whether they are credible. Since the Hearing Officer in this case relied solely on the written material documenting the informants' statements, petitioner contends, his obligation to make an independent credibility assessment was not satisfied.

We agree with petitioner's threshold premise that a Hearing Officer in a prison disciplinary proceeding may not rely on information provided by confidential informants unless the Hearing Officer first makes an independent assessment of the informant's reliability. While this Court has not expressly held as much, the lower courts of this State have long assumed that the Hearing Officer cannot simply rely on the investigating authority's determination but must instead make his or her own evaluation of the informant's credibility (e.g., Matter of Perron v. Coughlin, 199 A.D.2d 903, 606 N.Y.S.2d 67; Matter of Gaston v. Coughlin, 182 A.D.2d 1085, 582 N.Y.S.2d 878; Matter of Leach v. Coughlin, 179 A.D.2d 1050, 579 N.Y.S.2d 796; Matter of Franklin v. Hoke, 174 A.D.2d 908, 571 N.Y.S.2d 604; Matter of Moore v. Coughlin, 170 A.D.2d 723, 565 N.Y.S.2d 606; Matter of Carter v. Kelly, 159 A.D.2d 1006, 552 N.Y.S.2d 468; Matter of Nelson v. Coughlin, 148 A.D.2d 779, 538 N.Y.S.2d 360; Matter of Wynter v. Jones, 135 A.D.2d 1032, 522 N.Y.S.2d 966; Matter of Harris v. Coughlin, 116 A.D.2d 896, 498 N.Y.S.2d 276; Matter of Alvarado v. LeFevre, 111 A.D.2d 475, 488 N.Y.S.2d 856). Similarly, most of the Federal courts that have considered the issue have held that it denies due process for a Hearing Officer to simply adopt a determination of reliability that was made by the investigator who received the informant's evidence (e.g., Richardson v. Selsky, 5 F.3d 616 [2d Cir.]; Taylor v. Wallace, 931 F.2d 698 [10th Cir]; Freitas v. Auger, 837 F.2d 806 [8th Cir.]; Zimmerlee v. Keeney, 831 F.2d 183 [9th Cir.]; Henderson v. Carlson, 812 F.2d 874 [3d Cir.]; Hensley v. Wilson, 850 F.2d 269 [6th Cir.]; McCollum v. Williford, 793 F.2d 903 [7th Cir.]; Mendoza v. Miller, 779 F.2d 1287 [7th Cir.]; but cf., Russell v. Scully, 15 F.3d 219 [2d Cir.] [on reh].

Adoption of this principle in the context of prison disciplinary proceedings is supported by the rationale that this Court has previously used in cases involving the issuance of warrants by neutral Magistrates. The Court has held that when an application for a search warrant has been predicated on information obtained from an informant, the judicial officer before whom the application has been placed cannot rely on the applicant's assessment of the informant's reliability but must instead make that assessment independently, usually on the basis of the facts contained in the application (e.g., People v. Martinez, 80 N.Y.2d 549, 592 N.Y.S.2d 628, 607 N.E.2d 775; People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631; see, People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409). The rule is derived from the self-evident premise that where the law requires the interposition of a neutral arbiter, the obligation to weigh and resolve the material fact questions lies squarely with the arbiter and may not be delegated to the investigator or accuser (see, People v. Potwora, 48 N.Y.2d 91, 94, 421 N.Y.S.2d 850, 397 N.E.2d 361; People v. Hanlon, supra). This axiomatic principle is certainly applicable in this context, where the potential penalty--extended confinement to the Special Housing Unit--is severe and the law and governing administrative rules require an...