Opinion
05-12-2016
In the Matter of Waberly ALLAWAY, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Waberly Allaway, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Waberly Allaway, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and AARONS, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with fighting, violent conduct, creating a disturbance and refusing a direct order as the result of an altercation with another inmate. Following a tier III disciplinary hearing, he was found guilty as charged, and that determination was affirmed upon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
Although the petition raised the issue of substantial evidence and the matter was properly transferred to this Court, petitioner has abandoned that issue by not addressing it in his brief (see Matter of
Petitioner contends that he was improperly denied the right to call certain witnesses. We agree. “An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals” (Matter of Lopez v. Fischer, 100 A.D.3d 1069, 1070, 952 N.Y.S.2d 694 [2012] [citations omitted]; see Matter of Delgado v. Fischer, 100 A.D.3d 1171, 1172, 953 N.Y.S.2d 410 [2012] ). At the hearing, petitioner requested the testimony of two fellow inmates. He did not know the inmates' names, but identified them by their nicknames and each of the cell blocks in which they were housed. Although the Hearing Officer made a phone call in an effort to locate one of these inmates, he made no effort to locate the other one, stating that petitioner did not provide him with enough information. Although petitioner's description of the requested witnesses was limited, in our view it was sufficiently detailed in that an attempt to locate them would not have been overly burdensome. Accordingly, the Hearing Officer's failure to make a reasonable effort to locate the inmates violated petitioner's right to call witnesses (see Matter of Samuels v. Fischer, 98 A.D.3d 776, 777, 949 N.Y.S.2d 800 [2012] ; Matter of Alvarez v. Goord, 30 A.D.3d 118, 121, 813 N.Y.S.2d 564 [2006] ; People ex rel. Cooper v. Smith, 115 Misc.2d 689, 689–690, 454 N.Y.S.2d 635 [1982] ; cf. Matter of Jones v. Bellamy, 80 A.D.3d 1029, 1030, 915 N.Y.S.2d 383 [2011] ; Matter of Davila v. Selsky, 48 A.D.3d 846, 847, 850 N.Y.S.2d 705 [2008] ; Matter of Rodriguez v. Coombe, 239 A.D.2d 854, 854–855, 657 N.Y.S.2d 839 [1997], appeal dismissed 91 N.Y.2d 907, 668 N.Y.S.2d 1001, 691 N.E.2d 1025 [1998] ).
We reject respondent's contention that any error by the Hearing Officer in not attempting to locate the witnesses was harmless because the requested testimony would have been redundant in light of the hearing testimony of another inmate witness. Although the testifying witness supported petitioner's contention that he was not the aggressor in the fight but acted in self-defense, petitioner also questioned the witness extensively regarding whether petitioner refused a direct order. The witness's testimony regarding that charge was equivocal, stating that petitioner was initially cooperative, but that he “didn't see everything” when the correction officers broke up the fight. Under these circumstances, we cannot conclude that the testimony of the other witnesses would necessarily have been redundant (see Matter of Williams v. Annucci, 137 A.D.3d 1355, 1356, 25 N.Y.S.3d 911 [2016] ; Matter of Gross v. Yelich, 101 A.D.3d 1298, 1298, 956 N.Y.S.2d 283 [2012] ). Given that the Hearing Officer articulated a good-faith reason for denying the witnesses and for his lack of effort in locating them, we find that petitioner's regulatory right to call witnesses was violated and not his constitutional right, and remittal for a new hearing is the proper remedy (see Matter of Texeira v. Fischer, 115 A.D.3d 1137, 1138, 982 N.Y.S.2d 795 [2014], affd. 26 N.Y.3d 230, 22 N.Y.S.3d 148, 43 N.E.3d 358 [2015] ; Matter of Morris–Hill v. Fischer, 104 A.D.3d 978, 978–979, 960 N.Y.S.2d 273 [2013] ). Petitioner's remaining claim is rendered academic in light of the foregoing.
ADJUDGED that the determination is aned, without costs, and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.
Davila v. Prack, 113 A.D.3d 978, 978 n., 979 N.Y.S.2d 195 [2014], lv. denied 23 N.Y.3d 904, 2014 WL 2579975 [2014] ).