Calendar Date: November 25, 2013
Aaron Hand, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: Rose, J.P., Stein, Garry and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered January 30, 2013 in Ulster County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.
While incarcerated on other charges, petitioner was charged and pleaded guilty to conspiracy in the second degree, a felony. Thereafter, petitioner was charged with violating the prison disciplinary rule that prohibits being convicted of a felony while incarcerated. He pleaded guilty to the charge at the disciplinary hearing and requested as witnesses his attorney and the Inspector General involved in the felony plea negotiations for penalty mitigation purposes. The Hearing Officer denied the witness requests, stating that the attorney's testimony was irrelevant and the Inspector General was prohibited from testifying in administrative matters. At the conclusion of the hearing, a penalty of 72 months in the special housing unit was imposed. Following an unsuccessful administrative appeal, petitioner commenced a CPLR article 78 proceeding challenging the denial of the requested witnesses and the penalty imposed, and seeking annulment of the determination and expungement of the same from his institutional record. Supreme Court agreed that petitioner was improperly denied the right to call witnesses and annulled the determination, however, it remitted the matter for a new hearing. Insofar as petitioner did not receive all of the relief he requested, he appeals from Supreme Court's judgment.
We affirm. In situations where an inmate is improperly denied the right to call a witness at a disciplinary hearing, the appropriate remedy of remittal or expungement depends upon whether the situation constitutes a regulatory or constitutional violation (see Matter of Alvarez v Goord, 30 A.D.3d 118, 121 ). "[W]hile a hearing officer's actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness's testimony, constitutes a clear constitutional violation requiring expungement, most other situations constitute regulatory violations requiring a new hearing" (Moulton v Fischer, 100 A.D.3d 1131, 1131 , lv dismissed 20 N.Y.3d 1021  [internal quotation marks and citation omitted]). Here, because the Hearing Officer stated a good-faith basis for the denial of the witnesses, the error was not of constitutional dimension (see e.g. Matter of Buari v Fischer, 70 A.D.3d 1147, 1148 ; Matter of Alvarez v Goord, 30 A.D.3d at 121). Moreover, "[r]emittal for a rehearing rather than expungement is generally permissible where, as here, substantial evidence otherwise supports the determination" (Matter of Deboue v Fischer, 108 A.D.3d 818, 819 n ). Accordingly, we find that under the circumstances herein, Supreme Court correctly remitted the matter for a new hearing rather than order expungement (see Matter of Morris-Hill v Fischer, 104 A.D.3d 978, 978-979 ; Matter of Gross v Yelich, 101 A.D.3d 1298, 1298 ; Matter of Alvarez v Goord, 30 A.D.3d at 121).
Rose, J.P., Stein, Garry and Egan Jr., JJ., ...