In the Matter of Calvin Lee, Petitioner, v. Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents

In the Matter of Calvin Lee, Petitioner, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents. [600 NYS2d 559] [MAJORITY] Determination unanimously confirmed and petition dismissed. Memorandum: Respondents’ determination is supported by substantial evidence. The Hearing Officer erred in failing to notify petitioner before issuing a determination that confidential information would be considered and in failing to articulate a reason for keeping that information confidential (see generally, Matter of Odom v Kelly, 152 AD2d 1010; Matter of Freeman v Coughlin, 138 AD2d 824, 825-826; Matter of Boyd v Coughlin, 105 AD2d 532, 533-534). We conclude that the error was harmless, however, because the contents of the confidential information were identical to a misbehavior report filed by a Correction Officer, which was part of the evidence at the hearing, and because the evidence, without considering the confidential information, was legally sufficient to sustain the charges (see, Matter of Boyd v Coughlin, supra). Additionally, petitioner was found not guilty of possessing a weapon, which was the only charge to which the confidential report was relevant, and therefore he was not prejudiced by its use. (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Pine, Lawton, Boomer and Boehm, JJ.