Calendar Date: May 8, 2018
Darnell Ballard, Attica, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Devine, Clark, Aarons and Rumsey, JJ.
MEMORANDUM AND JUDGMENT
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 finding petitioner
guilty of violating certain prison disciplinary rules.
a frisk search of petitioner's shared cube, a correction
officer found a jar of urine, a container of bleach, 12
unidentified pills not in a container, five latex gloves and
a box of service gloves. Petitioner was thereafter charged in
a misbehavior report with possessing an altered item,
smuggling, possessing contraband, possessing unauthorized
medication, an unhygienic act, unauthorized exchange,
possessing property in an unauthorized area and stealing or
misusing state property. Following a tier III disciplinary
hearing, he was found guilty of the charges and a penalty was
imposed. The determination was upheld on administrative
appeal, and this CPLR article 78 proceeding ensued.
the misbehavior report and testimony of petitioner admitting
that the items were found in his cube provided substantial
evidence to support the determination (see Matter of
Washington v Annucci, 160 A.D.3d 1313, 1313 ;
Matter of LaGrave v Venettozzi, 157 A.D.3d 1184,
1185 ). Petitioner did not request that the officer who
searched his cell and authored the report be called as a
witness, and the Hearing Officer was under no obligation to
secure his testimony (see Matter of Williams v
Kirkpatrick, 153 A.D.3d 996, 996 ).
Petitioner's various explanations for the presence of the
items in his cube at most created a credibility issue for the
Hearing Officer to resolve (see Matter of Rivera v
Annucci, 160 A.D.3d 1273, 1273 ).
further argues that he was deprived of the opportunity to
call a witness because the Hearing Officer made no inquiry
into the reasons that his requested inmate witness reportedly
refused to testify. "An inmate charged with violating a
prison regulation is entitled to due process protections
which include a right to call witnesses and present
documentary evidence in his [or her] defense when permitting
him [or her] to do so will not be unduly hazardous to
institutional safety or correctional goals" (Matter
of Henry v Fischer, 28 N.Y.3d 1135, 1138 
[internal quotation marks and citation omitted]; see
Texeira v Fischer, 26 N.Y.3d 230, 233-234 ).
"An inmate may request a witness by either: (1)
informing his [or her] assistant [or] the hearing officer
before the hearing; or (2) informing the hearing officer
during the hearing" (7 NYCRR 254.5 [c] , ). The
record reflects that, prior to the hearing, petitioner asked
his employee assistant to interview a named inmate as a
potential witness (see 7 NYCRR 251-4.2), and a check
mark on the assistant form indicated that the witness did not
agree to testify but no reason was specified. The record does
not contain a signed witness refusal form or any explanation
for the inmate's refusal to testify (see Matter of
Barnes v LeFevre, 69 N.Y.2d 649, 650 ; cf.
Matter of Cortorreal v Annucci, 28 N.Y.3d 54, 57, 60
; Matter of Weston v Annucci, 153 A.D.3d 1537,
1537 ). At the start of the hearing, the Hearing
Officer advised petitioner that the inmate "did not
agree to testify, " to which petitioner replied
"okay." No witness was called to testify that an
inquiry was made of the requested inmate to establish his
refusal to testify and reasons therefor (cf. Matter of
Pagan v Venettozzi, 151 A.D.3d 1508, 1509 , lv
denied 30 N.Y.3d 903');">30 N.Y.3d 903 ; Matter of Hutchinson v
Annucci, 149 A.D.3d 1443, 1444 ), and the record
does not establish the Hearing Officer's personal
efforts, if any, to secure this inmate's testimony or
ascertain a plausible explanation for the inmate's
refusal (see Matter of Doleman v Prack, 145 A.D.3d
1289, 1290 ; cf. Matter of Blades v Annucci,
153 A.D.3d 1502, 1503 ; Matter of Allah v
Venettozzi, 147 A.D.3d 1133, 1133 ). The hearing
record form lists the inmate as petitioner's requested
witness and, next to his name, notes only that he
petitioner did not, at the hearing, request that the inmate
be called to testify or demand that there be a further
inquiry into his refusal (see Matter of Ayuso v
Venettozzi, 159 A.D.3d 1208, 1209 ; Matter of
Harris v Annucci, 148 A.D.3d 1385, 1385-1386 ),
the record does not reflect that petitioner was ever advised
of his constitutional or regulatory right to call witnesses
at the hearing (see Matter of Tolden v Coughlin, 90
A.D.2d 929, 930 , citing Wolff v McDonnell,
418 U.S. 539, 566 ; see also 7 NYCRR 253.5).
The constitutional right to call witnesses at a prison
disciplinary proceeding "is not waivable in the absence
of [an inmate] being informed of its existence"
(Matter of Santana v Coughlin, 90 A.D.2d 947, 948
). As such, the determination must be annulled. Given
that petitioner's due process rights were violated and
that this situation is comparable to the outright denial of
the constitutional right to call witnesses, expungement is
the proper remedy (see Matter of Doleman v Prack,
145 A.D.3d at 1290-1291; cf. Matter of Texeira v
Fischer, 26 N.Y.3d at 234-235).
McCarthy, J.P., Devine, Clark, Aarons and Rumsey, JJ.,
that the determination is annulled, without costs, petition
granted and respondent is directed to expunge all references
to this ...