Opinion
2014-01-16
In the Matter of Damon SAEZ, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Damon Saez, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Damon Saez, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., STEIN, McCARTHY and GARRY, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of assault on an inmate, possession of weapons, smuggling and gang activity as charged in a misbehavior report. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We annul. We agree with petitioner's contention, and respondent concedes, that the Hearing Officer erred in failing to ascertain why a requested inmate had refused to testify. Although the inmate assistant signed the form indicating that the requested inmate refused to testify, no explanation was given for such refusal. Moreover, the Hearing Officer made no attempt to verify the basis for the refusal, despite petitioner's repeated requests for the inmate's testimony ( see Matter of Abdur–Raheem v. Prack, 98 A.D.3d 1152, 1153, 950 N.Y.S.2d 800 [2012] ). Contrary to petitioner's assertion, we find that, under the circumstances herein, this was a regulatory, not constitutional, violation of his right to call witnesses. Accordingly, the determination must be annulled and the matter remitted for a new hearing ( see Matter of Dickerson v. Fischer, 105 A.D.3d 1232, 1232, 962 N.Y.S.2d 823 [2013]; compare Matter of Barnes v. LeFevre, 69 N.Y.2d 649, 650, 511 N.Y.S.2d 591, 503 N.E.2d 1022 [1986] ).
ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.