Calendar Date: October 29, 2012
Before: Mercure, J.P., Spain, Malone Jr., 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Following an investigation, petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting violent conduct, fighting and drug possession. A tier III disciplinary hearing was conducted, at the end of which he was found guilty as charged. Petitioner commenced this CPLR article 78 proceeding after his administrative appeal proved unsuccessful.
Respondent initially concedes, and we agree, that the determination must be annulled insofar as petitioner was found guilty of drug possession, as he was improperly deprived of the right to call a witness with information relevant to that charge (see Matter of Meyers v Fischer, 85 AD3d 1480, 1481 ; Matter of Michaelides v Goord, 300 AD2d 718, 719 ). In light of the recommended loss of good time, this matter must be remitted for a redetermination of the penalty imposed (see Matter of Gomez v Leclaire, 53 AD3d 994, 995 ).
Turning to the remaining procedural challenges advanced by petitioner, his right to call an inmate witness was adequately protected when the witness executed a refusal form and the Hearing Officer personally ascertained the reasons for that refusal (see Matter of Suero v Fischer, 95 AD3d 1509, 1510 ; Matter of Reynolds v LaClair, 89 AD3d 1338, 1339 ). Our review of the confidential testimony further establishes that the Hearing Officer properly assessed petitioner's mental health status and ability to participate in the hearing (see Matter of Irwin v Fischer, 85 AD3d 1336, 1337 , lv denied 17 NY3d 712 ). Lastly, petitioner was properly removed from the hearing after he became disruptive and, indeed, affirmatively demanded to return to his cell (see Matter of McKinney v Fischer, 94 AD3d 1325, 1326 ). His remaining arguments have been examined and, to the extent they are preserved, found to be without merit.
Mercure, J.P., Spain, Malone Jr., McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of drug possession and imposed a penalty; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references thereto from petitioner's institutional record and matter remitted to the Commissioner for an administrative redetermination of the penalty on the remaining violation; and, as so modified, confirmed.
Robert D. Mayberger Clerk of the Court
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