Opinion
November 19, 1984
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Judgment reversed, on the law, without costs or disbursements, the petition is granted to the extent that the determination is annulled, and the respondents are directed to expunge from petitioner's institutional record all references to the superintendent's proceedings.
At the time of petitioner's hearing, superintendent's proceedings were governed by regulations contained in 7 NYCRR 253.4 (b), (c), subsequently repealed. They provided that if an inmate denied any involvement in the incident for which he was charged, then "[t]he person conducting the proceeding shall interview one or more employees who witnessed or have direct knowledge of the incident" (emphasis added). Although petitioner herein denied any involvement in the incident, the hearing officer failed to interview the correction officer who had direct knowledge of the incident and simply relied on that officer's written misbehavior report to find petitioner guilty. Therefore, the determination under review cannot stand since it was made in violation of the subject regulation (see Matter of Hilton v Dalsheim, 81 A.D.2d 887; Matter of Longo v Fogg, 71 A.D.2d 955).
Even assuming, arguendo, that no regulatory violation existed, we would still annul the determination as not being supported by substantial evidence. As has been stated, where, as here, the inmate denies his involvement in an incident, the only evidence adduced against him being the written report of an employee having direct knowledge, and that employee is not called to testify, any adverse determination cannot be supported by substantial evidence (see Matter of Mallard v Dalsheim, 97 A.D.2d 545, 546; Matter of Cook v Coughlin, 97 A.D.2d 663; cf. People ex rel. McGee v Walters, 62 N.Y.2d 317).
Finally, due to the fact that petitioner has already served his sentence of 45 days' segregation, the proper remedy at this point is to expunge from petitioner's institutional record all references to the superintendent's proceeding (see Matter of Hilton v Dalsheim, supra). Mangano, J.P., Gibbons, O'Connor and Brown, JJ., concur.