Opinion
2013-04-18
In the Matter of Torrance DICKERSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Torrance Dickerson, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Torrance Dickerson, Pine City, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: PETERS, P.J., STEIN, SPAIN and EGAN JR., 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 possession of contraband, smuggling, possession of drugs and violating facility visiting procedures. The determination was affirmed on administrative review with a modified penalty, prompting the commencement of this CPLR article 78 proceeding.
When petitioner requested that a fellow inmate testify at the disciplinary hearing, the Hearing Officer merely noted that the witness had informed petitioner's employee assistant that he refused to testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness's refusal, is not a sufficient basis upon which to deny petitioner's right to call the witness ( see Matter of Pitts v. Fischer, 98 A.D.3d 762, 762, 948 N.Y.S.2d 923 [2012];Matter of McFadden v. Bezio, 92 A.D.3d 988, 989, 937 N.Y.S.2d 702 [2012] ). Inasmuch as this constitutes a regulatory violation, the appropriate remedy is to remit the matter for a new hearing ( see Matter of McFadden v. Bezio, 92 A.D.3d at 989–990, 937 N.Y.S.2d 702;Matter of Alvarez v. Goord, 30 A.D.3d 118, 121, 813 N.Y.S.2d 564 [2006];Matter of Martinez v. Goord, 15 A.D.3d 737, 738, 789 N.Y.S.2d 337 [2005] ). In light of our determination, we need not address petitioner's remaining claims.
ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.