Abdur-Raheem v. Mann

OPINION OF THE COURT

Petitioner brought this CPLR article 78 proceeding to challenge a prison disciplinary determination that he was

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 Nor-maul 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

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 Ms 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. Having subsequently granted petitioner leave to appeal, we now affirm.

t 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 NY2d 130 ). 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 NY2d 835 , affg 105 AD2d 913 ). 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 NY2d 141 ).

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 AD2d 903 ; Matter of Gaston v Coughlin, 182 AD2d 1085 ; Matter of Leach v Coughlin, 179 AD2d 1050 ; Matter of Franklin v Hoke, 174 AD2d 908 ; Matter of Moore v Coughlin, 170 AD2d 723 ; Matter of Carter v Kelly, 159 AD2d 1006 ; Matter of Nelson v Coughlin, 148 AD2d 779 ; Matter of Wynter v Jones, 135 AD2d 1032 ; Matter of Harris v Coughlin, 116 AD2d 896 ; Matter of Alvarado v LeFevre, 111 AD2d 475 ). 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

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 NY2d 549 ; People v Hanlon, 36 NY2d 549 ; see, People v Griminger, 71 NY2d 635 ). 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 NY2d 91 , 94; 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 adjudicative hearing before an impartial Hearing Officer (see, Wolff v McDonnell, 418 US 539 ; 7 NYCRR 254.1). Indeed, the regulations applicable to this class of hearings specifically exclude the "officer who reviewed the misbehavior report, or a person who has investigated the incident” from any fact-finding role (7 NYCRR 254.1).

We conclude, however, that petitioner cannot prevail in his main argument, since its determinative premise — that the Hearing Officer’s obligation to assess credibility requires a personal interview with the informant — is not sustainable. The Federal courts have already held that there is no single mandatory method for determining the reliability of a confi

We decline petitioner’s invitation to reject this flexible Federal rule for a more stringent State rule that would make personal interviews the sine qua non of reliability assessments in prison disciplinary proceedings conducted in New York. We have previously eschewed the use of rigid evidentiary tests in prison disciplinary cases, holding instead in People ex rel. Vega v Smith (supra, at 139 ) that the correction agency’s determination must be based on " 'the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (accord, Matter of Lahey v Kelly, 71 NY2d 135 ; see also, Matter of Foster v Coughlin, 76 NY2d 964 ). This formula reflects our judicial preference for a pliant standard that is simply incompatible with the absolutist approach that petitioner advocates.

Moreover, while face-to-face contact is a helpful tool for assessing credibility, it is not the only dependable method. In the context of probable cause determinations, for example, we have held that the veracity of an anonymous informant’s tip can be proven through independent corroborative details (People v DiFalco, 80 NY2d 693 ; People v Elwell, 50 NY2d 231 ). Similarly, it has also been held that the existence of a satisfactory "basis of knowledge” for an anonymous informant’s tip may be established without reference to outside corroboration if the tip itself "is so detailed as to make clear that it must have been based on personal observation” (People v Elwell, supra, at 241 ). Notably, the standard underlying these rules for assessing probable cause, i.e., that the evidence should be "of a quality * * * reasonably to be acted upon” (id., at 236-237), is similar in some respects to the standard we articulated in People ex rel. Vega v Smith (supra, at 139 ) for the caliber of evidence on which prison disciplinary determinations must be based.

Finally, our disinclination to embrace a blanket rule requiring the Hearing Officer to interview the agency’s confidential informant in every case is reinforced by our sensitivity to the exigencies of maintaining order in the simmering and often dangerous prison environment. We have previously recognized

Notably, the ability of prison authorities to protect inmate-informants from exposure is critical to their capacity to maintain order and enforce prison disciplinary rules. Because of the nature of the prison environment, correction officials must rely heavily on the willingness of informants to report specific violations and provide general intelligence about the inner workings of inmate society (see, Kyle v Hanberry, supra, at 1390 ). This important channel of information would obviously be impaired if prison investigators were unable to assure their informants complete confidentiality (cf., People v Castillo, 80 NY2d 578 ). Accordingly, we should be wary of inappropriately restricting prison authorities’ ability to protect their informants and should instead give a measure of deference to the choices that those authorities make (see, Dawson v Smith, 719 F2d 896 , 899, cert denied 466 US 929 ; see also, People ex rel. Vega v Smith, supra, at 142).

In this case, for example, the Hearing Officer had ample basis in the material before him to believe that petitioner was part of a tightly knit and far-reaching information network with a serious potential for retaliatory violence. Indeed, as the Hearing Officer specifically observed, petitioner "demonstrated [during the course of the hearing] that [he] kn[e]w who spoke to who[m] on all points.” Given the evident risk to the informants’ safety if their identity were revealed, the Hearing Officer committed no error of law in declining to have them called away from their daily routine for in camera interviews.

Indeed, the Hearing Officer did not in any way abdicate his adjudicative responsibility or otherwise fall into legal error in finding petitioner guilty of the charged violations on the basis of the record before him. It is apparent from the Hearing

We similarly reject petitioner’s contention that the Hearing Officer erred in denying petitioner’s request for a redacted copy of the confidential material on which the determination was based. In these circumstances, the identity of the source was evident from the substance of the information conveyed and, consequently, meaningful redaction was not possible (see, Matter of Morales v Senkowski, 165 AD2d 393 [Levine, J.]; see also, McCollum v Miller, supra, at 1048 ).

Petitioner’s contention that he did not receive adequate notice of the acts for which he was charged is equally merit-less. In the context of prison disciplinary proceedings, the notice requirement is satisfied when the inmate is given enough particulars to make an effective response (see, Matter of Lahey v Kelly, supra, at 144; Matter of Vogelsang v Coombe, supra). In this case, petitioner was given all the information necessary to the preparation of a defense, including that he was charged with conspiring to murder inmate Busjit, that the murder occurred during the morning of May 4, 1992 and that the facility gymnasium was the site of the crime. Contrary to petitioner’s contention, there was no need to notify him of the specific role he was alleged to have played, since the act of conspiring to commit a deadly assault was itself sufficient to constitute a violation of the prison rules (Standards of Inmate Behavior rules 1.00, 100.10 [7 NYCRR 270.2 (A), (B) (1) (i)]).

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Judgment affirmed, without costs.