McIntosh v. Coughlin

• Decision Date: 09 November 1989
• Citation: 155 A.D.2d 762,547 N.Y.S.2d 470
• Parties: In the Matter of Maurice McINTOSH, Petitioner, v. Thomas A. COUGHLIN, III, as Commissioner of the Department of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 470

547 N.Y.S.2d 470

155 A.D.2d 762

In the Matter of Maurice McINTOSH, Petitioner, v. Thomas A. COUGHLIN, III, as Commissioner of the Department

of Correctional Services, Respondent.

Supreme Court, Appellate Division,

Third Department.

Nov. 9, 1989.

Karen L. Murtagh-Monks, Prisoners' Legal Services of N.Y., Albany, for petitioner.

Robert Abrams, Atty. Gen. (Frank K. Walsh, of counsel), Albany, for respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate at Washington Correctional Facility in Washington County, was charged with violating a prison disciplinary rule. The misbehavior report, written by Correction Sergeant Matteson, alleged that on June 13, 1988 at approximately 10:00 A.M. inmate Cole reported that he had slipped and injured himself. Medical examination revealed that Cole had suffered a fracture to the jaw. Upon his return from the hospital approximately 11 hours following the incident, Cole changed his version of the events, indicating that he had been assaulted by an inmate known to him as "Mo", identified as being black and the "fattest" inmate in H-3 dorm, who worked on the farm, had sideburns that "joined his beard" and was assigned cubicle 40 to 45 in H-3 dorm. The report further alleged that this description was related to H-3 Dorm Officer Senecal, who thereby identified petitioner as the perpetrator. Following a hearing, petitioner was found guilty of the charge. After pursuing unsuccessful administrative review, petitioner commenced this proceeding to annul the finding of guilt and the penalty imposed.

Petitioner's initial contention, that there was not substantial evidence in the record to support respondent's determination, has merit and is dispositive of the proceeding. At the Superintendent's hearing, petitioner denied his guilt and advanced an alibi defense, alleging that he was enroute to or on a farm work detail at the time of the incident. Inmate Richard Caban testified on petitioner's behalf, stating that he was present at the time of Cole's injury, although he did not witness it, that he heard Cole say that he slipped on water and that he also heard a correction officer tell Cole to clean up the water. He could not state with certainty whether petitioner had left for his work detail at the time because, being a porter, he was in and out of the area. The Hearing Officer did not take the testimony of Matteson, Senecal or the officer on duty in H-3 dorm at the time of Cole's injury and, despite petitioner's specific request, did not interview Cole. Rather, he based his determination solely upon the unsworn hearsay misbehavior report of Matteson, who was not present at the time of the incident and had no independent knowledge of the events.

Although it is well settled that an unsworn hearsay misbehavior report may constitute substantial evidence to support a determination of guilt made as a result of a Superintendent's proceeding (Matter of Burgos v. Coughlin, 108 A.D.2d 194, 197, 488 N.Y.S.2d 847, lv. denied 66 N.Y.2d 603, 498 N.Y.S.2d 1023, 489 N.E.2d 256; see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332, 485 N.E.2d 997), where the misbehavior report was not written by a correction officer who witnessed the conduct in question, the record must contain...