Vogelsang v. Coombe

• Decision Date: 01 November 1984
• Citation: 105 A.D.2d 913,482 N.Y.S.2d 348
• Parties: In the Matter of Thomas VOGELSANG, Petitioner, v. Philip COOMBE, Jr., as Superintendent of Eastern New York Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 348

482 N.Y.S.2d 348

105 A.D.2d 913

In the Matter of Thomas VOGELSANG, Petitioner, v. Philip COOMBE, Jr., as Superintendent of Eastern New York Correctional Facility, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 1, 1984.

Alice O. Mann, Prisoners' Legal Services of N.Y., Poughkeepsie, for petitioner.

Robert Abrams, Atty. Gen., Albany (Martin A. Hotvet, Asst. Atty. Gen., Albany, of counsel), for respondents.

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

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to annul a determination of the Commissioner of the Department of Correctional Services finding petitioner guilty of violating certain disciplinary rules.

In a much publicized riot at Ossining Correctional Facility occurring on January 8 through 11, 1983, inmates held 17 correction officers hostage for approximately 53 hours. On August 26, 1983, petitioner, a former inmate at Ossining but incarcerated at Eastern New York Correctional Facility since early 1983, was served with an inmate misbehavior report describing specific acts of misconduct allegedly committed by him during the Ossining disturbance and charging him with 13 institutional violations.

A superintendent's proceeding, in accordance with 7 NYCRR part 254 (revised effective June 15, 1983), was commenced on August 27 and September 2, 1983 for the in-person testimony of Assistant Inspector General (AIG) Leo Bisceglia, who supervised the investigation of the riot. During that investigation, which lasted approximately one month, 18 investigators were assigned to the task and over 400 inmates were interviewed, as well as every employee and hostage involved. On September 14, 1983, an adjourned date for the superintendent's proceeding, petitioner listened to tape recordings of eight interviews with AIGs; two of these were inaudible. Relying on confidential information and statements obtained from Ossining inmate informants and correction officers who had witnessed the riot, the AIGs testified about petitioner's role in the affray. This testimony included his identification as an inmate leader, as possessing officers' keys, and as yelling, "Kill the police."

Claiming the charges were fabricated, petitioner pleaded not guilty. On two occasions during the hearing, he declared he did not wish to call any witnesses; he did however, request that the hearing officer interview witnesses with direct knowledge of the incident. At the conclusion of the hearing, petitioner was found guilty of 11 violations including threats, takeover riot, violent conduct, urging others to participate and possession of keys. The penalty imposed was 550 days of solitary housing unit, loss of good time, loss of phone calls and loss of commissary.

We have heretofore concluded that a statement from a witness with direct knowledge of the incident involved, without more, is sufficient to support a prison disciplinary decision (Matter of Garcia v. LeFevre, 102 A.D.2d 1004, 477 N.Y.S.2d 862; see, also, Smith v. Rabalais, 5th Cir., 659 F.2d 539, 546, cert. den. 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853). Here, there is direct evidence against petitioner in a sworn statement from Correction Officer Israel Romero that petitioner "grabbed me and ordered me to get to the back of the block". Moreover, a review of the confidential file, which was examined by the hearing officer before arriving at her decision, substantiates Romero's statement. Hence, we confirm the finding...