Opinion
April 5, 1985
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Hancock, Jr., J.P., Doerr, Boomer, Green and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: In this CPLR article 78 proceeding brought to review a determination after a disciplinary proceeding concerning petitioner's alleged unauthorized possession of a tool, Special Term properly annulled the determination and expunged the violation from the record upon the ground that the correctional authorities failed to comply with several prehearing requirements. Petitioner speaks only Spanish. Upon the filing of the charges on April 2, 1984 he was keeplocked. The authorities afforded him the aid of an assistant who spoke no Spanish. This assistant met with petitioner on April 6, 1984 and reported that petitioner did not request that any witnesses be interviewed or appear on his behalf. Petitioner did not receive the assistance of anyone who could speak Spanish until translators appeared at petitioner's hearings on April 8 and 10, 1984. We construe the regulations as requiring that an inmate who is keeplocked and who speaks no English have, at least 24 hours before the hearing, the aid of an assistant who speaks his language or of both an assistant and a translator ( see, 7 NYCRR 251-4.1, 251-4.2, 253.2, 253.4, 253.6 [a]). A construction of the regulations as requiring only an assistant who cannot communicate with the inmate would be patently absurd. The State does not claim otherwise on appeal. Rather, it claims that the only function of an assistant is to interview and call witnesses and that there is no showing that petitioner desired to call any witnesses. Therefore, the State argues, any violation of the regulations under the circumstances would be harmless. Petitioner could not communicate with his assistant, and there is no showing that he was aware of his right to call witnesses or that he made a knowing and voluntary waiver of that right ( see, Matter of Shipman v. Coughlin, 98 A.D.2d 823; Matter of Burke v. Coughlin, 97 A.D.2d 862, 863). Moreover, the role of the assistant, which includes explaining the charges to the inmate and obtaining evidence, is broader than simply interviewing witnesses. Accordingly, because the correction authorities did not comply with the prehearing requirements, the proceeding was a nullity ( see, Matter of McCleary v. LeFevre, 98 A.D.2d 866; Matter of Shipman v. Coughlin, supra; Matter of De Mauro v. LeFevre, 91 A.D.2d 1156; Matter of Williams v. LeFevre, 90 A.D.2d 579).