Siders v. LeFevre

• Decision Date: 29 December 1988
• Citation: 536 N.Y.S.2d 206,145 A.D.2d 874
• Parties: In the Matter of Louis SIDERS, Petitioner, v. Eugene S. LE FEVRE, as Superintendent of Clinton Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 206

536 N.Y.S.2d 206

145 A.D.2d 874

In the Matter of Louis SIDERS, Petitioner, v. Eugene S. LE FEVRE, as Superintendent of Clinton

Correctional Facility, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 29, 1988.

Robert C. Hauhart, Prisoners' Legal Services of NY, Plattsburgh, for petitioner.

Robert Abrams, Atty. Gen. (Lisa Joh Robertson, of counsel), Albany, for respondents.

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

WEISS, Justice Presiding.

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

Petitioner, an inmate at Clinton Correctional Facility in Clinton County, was charged with violating disciplinary rule 113.10 (7 NYCRR 270.1), which prohibits inmates from making, possessing, selling or exchanging any item of contraband that may be classified as a weapon by description, use or appearance. A second charge premised on rule 104.11 ("Inmates shall not engage in any violent conduct or conduct involving the threat of violence" ) was dismissed by the Hearing Officer. In his misbehavior report, Correction Sergeant R.J. Foster stated that he observed Correction Officer L. Maloney pick up the mattress on petitioner's bed, at which time he, Maloney and a third correction officer, R. Miner, all observed a weapon later identified as a "shank" between the mattress and a blanket laying on the bed frame. Maloney and Miner both signed the misbehavior report. At the tier III Superintendent's hearing, the misbehavior report was read into the record and both Maloney and Miner testified. Petitioner participated in the hearing. He conceded the presence of the weapon in his bed but denied any knowledge of possession, contending that it could have been placed by another inmate as an act of revenge. Petitioner was found guilty of the first charge and punishment imposed. This CPLR article 78 proceeding was commenced to annul the administrative determination on the ground that it was not supported by substantial evidence.

Petitioner's principal argument is that the search was initiated upon an anonymous tip. Petitioner contends that this tip was the only evidence of his ownership or possession of the weapon and that, absent an independent assessment of its reliability, the charge was unsubstantiated. We disagree. Petitioner has misperceived the issue involved. Charges were not imposed upon receipt of the tip; rather, it was only after the weapon was found in petitioner's bed that the misbehavior report was made. The determination of guilt was made based upon the testimony of two officers who found the weapon. The cases of Matter of Alvarado v. Le Fevre, 111 A.D.2d 475, 488 N.Y.S.2d...